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It’s been a great symposium.  Many thanks to all of our outstanding contributors!  This Symposium demonstrated blogging’s potential for productive intellectual discussion of an important current topic.  We expect to have more such virtual conferences.

Read the full piece here.

What will legal education be like in the significantly deregulated world I’ve predicted in prior posts?

I gave some thought to this question in my recent paper, Practicing Theory. There I pointed out that law schools, and particularly law faculty, have benefited from the same regulation that has benefited lawyers.  Although lawyers now complain that legal education is insufficiently “practical,” they have only themselves to blame for any deficiencies.  The legal profession has established law school accreditation as a costly barrier to entry, and then effectively delegated control over what was taught in law schools behind the regulatory walls.

I also argued in the above paper that the debate over the content of legal education in a deregulated world is not the one that we seem to be having — that is, between “practice” and “theory.”  When deregulation comes the market will control content.  It’s far from clear that the market will demand that lawyers keep doing what they’ve been doing, which is what lawyers mean by “practice.”  It follows that law schools should not necessarily train students to do what lawyers are doing right now.  New lawyers’ roles will require new types of education.

My article outlines some future roles of lawyers, and how law school can help train for these rules.

Lawyers as collaborators:   In the new world of legal services, the more menial tasks will be done by machines or non-professionals, leaving lawyers for the more sophisticated stuff.  This will require collaborations across the physical and social sciences.  For example, lawyers might work with psychologists to incorporate the tools of behavioral psychology into creating and applying consumer, securities, and other regulation. Legal experts also will have to learn to work with (or be) computer engineers to produce the powerful technological tools I’ve discussed in previous posts.

The lawyer as manufacturer: Lawyers will not simply be applying old cases to new fact situations to advise clients what they should do. Rather, they will be designing the products discussed in previous posts such as contracts and compliance devices.  As designers they will need to delve into basic theories of contract production, deterrence and the like.  While automation handles many legal tasks, designing the tools for these tasks will require experts who understand their basic architecture.

The lawyer as lawmaker: Lawyers, freed from simply applying the law, may be increasingly involved in designing it.  This entails an understanding of how and why laws, constitutions and procedural systems work.  The theory taught in law schools, including economics, philosophy, history and comparative law, was often not very relevant to routine law practice.  When software and low-paid workers take over those tasks, the legal experts who remain will need this theory.

The lawyer as information engineer: Lawyers and scholars might be able to use data to predict the future.  But to do that they will need theories from such fields as economics, psychology, sociology, decision theory, and political science to construct the models that make sense out of the raw data.  This work also provides another reason why lawyers will need to learn how to collaborate with (or be) computer scientists.

The lawyer as capitalist: Lawyers can make a lot of money in the capital markets from being able to predict legal outcomes that determine asset values. The demand for this expertise could increase the demand in law schools for training in securities and finance law. It also could refocus the study of such basic areas as contract, property, and tort law from advising and litigating to handicapping the results of litigation.

Global legal education: Legal educators increasingly cater to law students from outside the United States. They therefore need to focus on the basic principles of American common law and system of government.

Private meets public law. The theories legal experts will need to learn to move from applying existing law to creating new legal structures will have to meet market demands rather than educators’ preferences. While legal experts no longer may be able to ignore such fields as constitutional and administrative law, they will have to take with them into these fields the tools and lessons of private ordering and markets.

Educating business lawyers. Many legal experts will move directly into businesses.  But in-house lawyers’ tasks may change from the current model.  Increasing automation of corporate contracting and compliance may help embed legal work into the basic structure of business.  In-house lawyers will move from talking to business people to being business people.  This suggests that legal education and business education may merge for at least a subset of legal experts.

The end of one-size-fits-all:  Licensing, accreditation and bar exams have locked in a single model of three-years of law school with a fairly standardized curriculum.  The developments discussed in my previous posts make this model increasingly untenable.  The new legal expert must be trained for business, law making, technology design and many other tasks that cannot be encompassed by a single course of study.  Moreover, this world will rapidly evolve in uncertain ways once freed of licensing’s constraints.  Legal educators will have to be free to experiment with a variety of different approaches, much as business schools do today. The accreditation standards that survive as part of the new regulation of lawyers will have to provide this freedom.  This argues for the “driver’s license” approach to licensing suggested in a previous post in which lawyers can use their home state license to practice anywhere. Such an approach could allow for different forms of mandatory training for different types of specialties.  These requirements could evolve as states balance the need for some regulation against the clamor by local consumers for access to cheaper services.

Lessons for today’s law schools:  What should law school faculty and administrators do now?  The top six or so can probably keep plugging away at what they have done:  teaching high end theory to top law students.  These students likely will be the legal architects of the future.  When the new era comes, the top six schools will have the resources and reputation to turn on a dime and embrace the future.

But for the Harvard wannabes that think they can ignore the changes shaking the profession and party like it’s 1899:  you are ill-serving your students and will be fighting for your lives in a few years.  The time to think about the future is right now.

I’ve expressed doubts previously as to whether the simple model of licensure as incumbent protection adequately explains why our legal system (like all others I know of) limits who can be a lawyer, and in particular who can litigate in others’ interest. But if there’s one sector of the legal system that’s genuinely ripe for a critique of cozy cartelization, it’s the legal academy, a topic I tackle at more length in my recent book Schools for Misrule.

Read the full piece here.

My first post discussed one primary impediment to deregulating all the lawyers – which is the current system of legal regulation of lawyers.   Even if one agrees that deregulating all the lawyers may be the ultimate goal, this still leaves the question of how best to achieve this result.  Deregulating all the lawyers may not be the first thing we do.  One plausible candidate is fixing intellectual property protection for law.

This view is based upon the assumption that the best way to achieve the goal of deregulating all the lawyers is to create incentives for entrepreneurs to produce new and innovative legal information products.  As noted in my earlier post, innovation and entry by entrepreneurs into the legal information market can be a powerful force that weakens of the economic and political power of those whose interests are aligned with maintaining the current regulatory regime.  One result of this process is that deregulation becomes more likely.   This dynamic is why I love Virginia wine, even though I never drink it.

Creating incentives for entrepreneurs to innovate and enter requires a mechanism that allows them to appropriate a return to their investments.  Intellectual property rights can be an essential mechanism through which this occurs. Indeed, intellectual property rights can effectively protect many innovative legal information products.  However, in several important cases, legal information is subject to what can be described as a form of legal exceptionalism that results in weakened intellectual property rights.  In general, the availability and scope of intellectual property rights are limited so that the costs of restricting the use of already produced information do not exceed the benefits associated with the marginal incentives to create the information.   Intellectual property rights for law and related works seem to be further limited because of heightened concerns regarding use costs that are specific to legal information.

Perhaps the best example of legal exceptionalism is the legal treatment of the privately produced model building codes in Veeck v. SBCCI, 293 F.3d 791 (5th Cir. 2002, en banc).  In this case, Veeck posted SBCCI’s copyrighted model building codes on a website in violation of a license agreement that prohibited copying or distributing the work. The court held that the copyrighted code text entered the public domain when adopted as law by several local jurisdictions.  Through SBCCI retained copyrights to its model codes, they could not enforce them against Veeck, who identified the posted SBCCI model codes as the building codes of two municipalities.

Current copyright law precludes copyright protection for any work “prepared by an officer or employee of the United States Government as part of that person’s official duties”.  Under this definition, court opinions written by federal judges, congressional bills and statutes, and federal regulations are ineligible for copyright protection.  Courts have applied similar rules to state legal materials, including state judicial opinions, statutes, and regulations.   These rules assume that the use costs of intellectual property protection outweigh gains from improved private incentives to produce model laws.   Copyright law does not explicitly preclude copyright for model codes and other privately produced laws.  However, the court’s holding, by elevating due process concerns with public access to the law over providing economic incentives to produce model codes, effectively extends this prohibition to privately produced model codes and laws that have been adopted as law.

Protecting due process concerns does not require precluding copyright protection for privately produced works adopted as law.  Broad fair use privileges for those bound by the laws or codes could address these concerns while simultaneously protecting model codes from appropriation by competing commercial interests and other jurisdictions.   Restrictive licenses can also serve to appropriately balance the use-creation tradeoff by clarifying parties’ expectations regarding permitted uses and pricing of the copyrighted model law.   As part of these licenses, jurisdictions that adopt privately produced and copyrighted model codes could alleviate due process concerns by authorizing use by citizens bound by the law while preventing reproduction for other purposes.  Courts could require similar licenses to be granted by those wishing to file briefs and other potentially copyrightable documents.

The court’s holding in Veeck unnecessarily limits the ability to use these mechanisms by effectively eliminating copyright protection rather than retaining the protection and using the mechanisms discussed above that would permit limited public use and mitigate any due process concerns.  In doing so, the courts holding, along with other similar forms of legal exceptionalism unnecessarily weakens incentives for legal innovation and can result in less pressure to deregulate all the lawyers.

It is questionable whether states should have unauthorized practiced of law statutes and bar admission standards based on credentials rather than examinations. A first step, however, is to attack statutes that forbid a non-lawyer from giving free legal advice, whether to friend, family, or just someone who can’t afford all the legal help he needs. Should such charity be a crime?

Read the full piece here.

First, thanks to TOTM for organizing this symposium on a most timely and important topic.  As computers and technology have revolutionized every aspect of human endeavor it is a particularly critical time to ask ourselves why 21^st century law schools closely resemble the law schools of the late-19^th century and why in court litigation would seem relatively familiar to Clarence Darrow.  One significant answer is the regulation of the legal profession, and one possible solution is significant deregulation.

Read the full piece here.

Lawyer licensing should not be completely abolished, but it should be made radically easier and cheaper by abolishing the requirement that lawyers attend law school to sit for the bar exam, and by only requiring passage of the bar exam for those who handle court cases.  Legal redress should also be made easier by allowing more cases to be brought in small-claims courts.

Read the full piece here.

When Americans think about governmental regulations meant to protect them against harm, they are prone to making two mistakes in judgment: first, they tend to overestimate the benefits that are supposed to result from regulation (including mandatory licensing) and second, they tend to underestimate (and usually to completely overlook) the costs and problems created by it.

Read the full piece here.

Attorneys earn excess rents by maintaining barriers to entering the legal profession.  Legislation and regulation expanding the scope of work that only an attorney legally can perform is an obvious way in which attorneys attempt to expand or protect the market for their services.  The FTC has a long history of trying to convince state legislators and courts that expanding the scope of the practice of law is likely to have unjustified anticompetitive consequences.   A more subtle way attorneys limit competition for legal services is by interpreting existing legislation and rules in a manner that expands the universe of practices that are considered “unethical” or “unauthorized practice of law.”  In this symposium, I will address the application of antitrust law to this conduct.

Read the full piece here.