Law professor Benjamin Barton has a book titled The Lawyer-Judge Bias in the American Legal System, which he discusses in an interview here. At the outset he discusses “public choice” or “New Institutional” economics, viewing all actors including bureaucrats as self-interested utility maximizers. But the issue he actually seems to be discussing is one of class/caste solidarity and sympathy. He points out that most judges are former lawyers, but the fact that they are no longer lawyers means that a homo economicus judge should be indifferent to those things which only affect lawyers rather than judges. Barton actually seems to be agreeing with Sotomayor that the personal background a judge brings is important to their decisions, and disproportionate representation of certain groups results in bias. Such thinking could also lend support to Roman Hruska’s argument that the mediocre should be represented on the judiciary.
More evidence for this idea regarding judges here.
January 31, 2011 at 3:25 pm
I believe that judges, having been lawyers, do tend to think about things that affect lawyers even thou they are no longer pleading cases. Judges can and often do retire from the bench to resume the private practice of law.
I am reminded of an old joke from Communist-era Poland. Supposedly the Soviet puppet Gomulka was presented with a number of requests from various departments of government. Among them was one for new schoolbooks for a grammar school, and another for a cinema projector for use at a prison. The petty dictator declined the request for schoolbooks, but approved the request for the convicts’ cinema. When an aide asked him why he did this, he responded – “I’ll never be going back to school!”
Many years ago I had an employee who was forced to retire early because of severe heart disease. He suffered from angina pectoris so badly that he could not get through a day’s work without an episode of chest pain. When he applied for a social security disability pension, he was turned down. When he told me this tale of woe, I found him a lawyer who appealed the decision before one of the administrative tribunals appointed to handle such matters. This lawyer was an associate of the firm that handled my business’s retirement plan – a well-recognized name locally.
My ex-employee told me that the administrative law judge looked at the lawyer representing him, said, “I’m surprised to see you here,” and after a brief hearing decided in favor of giving him the disability pay. The lawyer charged him plenty – 1/2 the first year’s payments. But he got him the money!
I later read that in cases where an applicant for social security disability compensation seeks it on a pro se basis, 80% are declined. In cases where the applicant retains legal counsel, 80% are approved. Obviously, when there is a lawyer on the bench, and a lawyer on the other side, the litigant who represents himself is at a severe disadvantage. However, in situations like social security administrative law, it does not seem to me that the technical skills of an applicant’s lawyer are what result in this benefit. Very few such cases involve abstruse points of law. Rather, the applicant who has engaged the services of a lawyer is seen as paying his due tribute to the system, whereas the pro se applicant is seen as not playing by the rules.
February 1, 2011 at 7:41 pm
What about pro bono work?
February 2, 2011 at 2:37 pm
Well, what about it? So-called pro-bono work is most often done not as a pure charity at the expense of a lawyer’s income, but to promote certain ideological objectives he or his firm favor – objectives that are largely shared by bench and bar. Money is not the only consideration of self-interest. To br sure, money and ideology often become so entangled as to be inseparable. A government that robs Peter to pay Paul can always count on the loyal support of Paul.
The bench also acts in its own self-interest, which of course may not be that of either litigant or his counsel in a particular case. As Joe Sobran wrote in “How Tyranny Came to America”:
“In 1993 the [Supreme] Court handed down one of the most bizarre decisions of all time. For two decades, enemies of legal abortion had been supporting Republican candidates in the hope of filling the Court with appointees who would review Roe v. Wade. In Planned Parenthood v. Casey, the Court finally did so. But even with eight Republican appointees on the Court, the result was not what the conservatives had hoped for. The Court reaffirmed Roe.
“Its reasoning was amazing. A plurality opinion – a majority of the five-justice majority in the case – admitted that the Court’s previous ruling in Roe might be logically and historically vulnerable. But it held that the paramount consideration was that the Court be consistent, and not appear to be yielding to public pressure, lest it lose the respect of the public. Therefore the Court allowed Roe to stand.
“Among many things that might be said about this ruling, the most basic is this: The Court in effect declared itself a third party to he controversy, and then, setting aside the merits of the two principals’ claims, ruled in its own interest! It was as if the referee in a prizefight had declared himself the winner. Cynics had always suspected that the Court did not forget its self-interest in its decisions, but they never expected to hear it say so.
“The three justices who signed that opinion evidently didn’t realize what they were saying. A distinguished veteran Court-watcher (who approved of Roe, by the way) told me he had never seen anything like it. The Court was actually telling us that it put its own welfare ahead of the merits of the arguments before it. In its confusion, it was blurting out the truth.”
Yes, stare decisis protects the consistency of the court, and prevents its appearing to yield to public pressure. But since the late 1930s it almost always does so in a particular direction. Thus, stare decisis is almost never operative in cases where it would result in a limitation of Federal powers, particularly those of the Federal courts. Such decisions are always ripe for being overturned, whereas those that assert an aggrandizement of those powers are typically always sustained. This not only expands the role of the courts, but also makes more work for lawyers.
February 2, 2011 at 11:23 pm
I posted about this topic in a random thread on yglesias blog.
It’s tricky the degree to which lawyers are deadweight loss to the system, and the degree to which they provide organizational value. My natural inclination is to prefer industrial engineers to lawyers for the role of organizational science professionals -but looking at the real world there does seem to me to be something magically good about the value transactional lawyers add to large financial and logistic endeavers. I guess at their best they’re rule efficacy specialists?
Litigating lawyers is harder for me to defend, I lean towards expert determination rather than adverserial jurisprudential systems –I see litigating lawyers at best as providing a better solution to the problem of hecklers to civilized resolution of conflict –but in the real world it’s hard not to see a huge bulk of them as coordinating rent-seekers.
February 3, 2011 at 12:18 am
The pro bono link was about how ineffective Harvard lawyers were, the opposite of what one might expect given the brand-value.
The Federalist Society had some presenters giving “libertarian and conservative” alternatives to originalism here, where Orin Kerr advocates stare decisis. What the court did in Casey doesn’t sound that odd to me, but I’m no lawyer. Scalia most likely thinks the Slaughterhouse cases were wrongly decided (I might be one of the few who doesn’t, some revisionism on them here), but (unlike Thomas) went along with them for Chicago vs McDonald. He also shows no interest in overturning Wickard vs Filburn.
There may be more transactional lawyers than litigators, but they don’t have nearly as much mindshare with the general public. Transactional lawyers may smooth things along, but so do bribes to officials. My understanding is that other countries get by with far fewer lawyers. The example commonly given by Japan, but maybe organizing things in giant zaibatsu rather than interfacing multiple firms through markets (paging Coase and Williamson) makes them less necessary.
February 3, 2011 at 11:22 am
The pro bono link was about Harvard law STUDENTS. I suspect their efficacy at securing benefits reflects their status. Anyone who would employ a person who had not finished his professional education in some delicate matter should not be surprised when the results are disappointing. Having a law student represent a claimant in such a case seems to me to be about the equivalent of having a medical student install a prosthetic knee in lieu of engaging the services of a board-certified orthopaedic surgeon.
I see nothing in what you have written that conflicts with my analysis of the motivations of the courts. They will overturn precedent that limits their authority, but will not overturn precedent that expands it.
February 7, 2011 at 4:00 am
Michael, there’s nothing simple about social security disability law. Like almost all law, most of it is based on precedent of which the layman is not aware. You have better luck with contracts or arguments before the court made by lawyers for the same reason you have better luck with computers that have been programmed by software engineers rather than doctors, or for the same reason you have better luck with surgery performed by doctors than by software engineers.
HA, industrial engineers to secure transactions and resolve disputes? WTF?!? Talk about hyperrationalism gone mad! Industrial engineers BTW are trained in the finer arts of resource allocation internal to an organization. Laying out a factory floor being the classic IE job. In the socialist era, when it was popular to think about “society” as simply one big organization, industrial engineering techniques were used to plan socialist economies. Ah, for the good old days of the 5-year plan!
February 8, 2011 at 1:28 am
“HA, industrial engineers to secure transactions and resolve disputes?”
That’s not how I framed it, but I do think there should be quantitative competence at the top of the professional hierarchy for optimizing organizational activities like securing transactions and dispute resolution.
Using examples of people who engaged in overreductionisms or numberisms of various types (the 5-year plan, “society as simply x”) to argue against quantitative imperial encroachment on traditional lawyerly activities is bad faith, it seems to me.
February 27, 2011 at 3:01 am
Bad faith? You’re the guy who suggested that “industrial engineers” should be at the top of the hierarchy, not me. I have enough knowledge to recognize that kind of thinking is straight out of 20th century socialism, but of course if I state any such embarrassing facts that’s “bad faith.” And you maliciously called lawyers, who unlike IEs are actually trained to understand social institutions and do people jobs, “deadweight”. If any of these kinds of arguments are “bad faith” that certainly is. And quantitative skills are far down on the list of what is needed for people jobs or for understanding social institutions generally, the two biggest skills needed at but all too scarce even at the tops of hierarchies.
BTW, computers have far better quantitative skills than IEs or any other humans. Far more than even the Asperger’s cases who don’t understand the importance of tradition and people skills. Perhaps we should just go whole hog and replace lawyers with computers while were are arguing in such a silly way about theories of organization that could only still be held by an autistic socialist!
February 8, 2011 at 9:40 pm
That’s a good point, Michael.
A link for H.A: “The catholic church makes around 400 billion dollars a year basically selling vaporware immortality.”
December 5, 2011 at 9:14 pm
[...] too much on money as a causal mechanism, when (considering the status of most congresscritters) a more leftish social/class explanation has some plausibility. I don’t mean to completely exclude the influence of money [...]