LAW: Bar Associations and Monopolies (Was: POL: Reaction to Microsoft Ruling)

Date: Sun Apr 16 2000 - 09:20:50 MDT

[My delayed entry into this discussion may be repetitive - apologies in

In a message dated 4/13/00 12:03:36 AM Central Daylight Time, writes:

> Saying that lawyers have a "monopoly" on the practice of law is like saying
> that licensed drivers have a monopoly on driving.

I don't think so. First, the "barriers to entry" for getting a driver's
license are pretty low (all you have to do is drive on the freeway to see
this :-). Second, lots of people drive without licenses. So long as you're
careful, you'll never be caught.

I have pretty mixed feelings about what I believe is in fact a state-backed
monopoly - i.e. the professional bar. On the one hand, I think state-backed
monopolies are bad. On the other, allowing just anybody to hold themselves
out as an attorney would seriously corrode the rule of law. Consider that
one of the fundamental values underpinning the rule of law is that people
must be bound by the judicial process. Mandating some minimal certification
for attorneys enhances this value, since it makes it more fair to bind
someone who is represented by counsel. Of course, you have to have
exceptions, which the post-Gideon "ineffective counsel" jurisprudence does.
(BTW, Henry Fonda's movie, "Gideon's Trumpet", is very high on my all-time
"best law movies ever" - along with Fonda's "12 Angry Men", Spencer Tracy's
"Judgment at Nuremberg" and Jimmy Stewart's "Anatomy of a Murder".)

The system we now have evolved from each court or court system regulating its
own bar, with essentially local "legal elders" administering bar examinations
on behalf of the courts in a pretty decentralized fashion. Criteria for
taking the exam were highly flexible and consisted primarily of sponsorship
by a known and respected member of the bar. One of the founders of my firm
didn't attend law school, but "read law" in the old fashioned way as a
working apprentice in the profession under this system. He must have done
well, since he was Jesse Jones' personal attorney (Jones going on to own a
good chunk of coastal Texas, create one of the largest charitable foundations
in the world and become Secretary of Commerce).

Likewise, before the unification of the old diverse subject-matter court
systems, the various lines of judicial authority maintained their own
idiosyncratic bar admission and regulatory systems. The law courts, chancery
courts and admiralty boards each had separate bars, with specialized criteria
for admission, in many places in the Anglosphere well into this century. It
was a rare lawyer indeed who was both a proctor in admiralty and an attorney
at law before 1900, for instance.

The old system worked fairly well and could be a model for a more flexible
"polycentric" professional bar. Getting to such a result would require us to
let go of the "stasist" paradigm of state-centered centralization that
characterized much of the legal-systemic thinking of the 20th century. But I
don't think I could ever support a complete "deprofessionalization" of the
practice of law. A life in the law is just that, and can't be something one
does without a fairly deep personal commitment, at least not without doing a
grave disservice to anyone who would look to you for help in navigating the
web of legal responsibility.

       Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide -or-
                                           ICQ # 61112550
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our species."
                                          -- Desmond Morris

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