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Cross Posted at Legal Schnauzer
We recently wrote about the legal field's status as America's only truly self-regulating profession--and made a case that such status helps breed corruption in our courtrooms.
A reader took issue with my conclusion and asked me to provide evidence to support my contention that it is a bad idea to have lawyers overseeing lawyers. This blog--through our coverage of the Don Siegelman and Paul Minor political prosecutions, plus my own legal travails--has presented ample evidence that our justice system desperately needs reform.
But I suspected my reader wanted something more than that. So I came up with even more compelling evidence--and it comes from a member of the legal profession.
Benjamin H. Barton , an associate professor at the University of Tennessee College of Law, has written an article that asks this compelling question: "Do Judges Systematically Favor the Interests of the Legal Profession?"
Barton's answer is a resounding "yes." And he provides plenty of evidence, and insider analysis, to back it up. Many of the skewed results from American courtrooms can be described by what Barton calls the "lawyer-judge hypothesis":
Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.
Barton's article is academic in nature and gets into some pretty heavy stuff, such as "new institutionalism" and "public choice theory." But here is a solid bottom-line description of what he is talking about:
Judges tend to come from a very select group of individuals who have thrived within the institution of legal thought and practice. As a result judges take a particular set of deeply ingrained biases, thought-processes, and views of the world with them to the bench. These institutions can't help but color and control judicial thinking and outcomes, and the cases that affect the legal profession as a whole are just one of many cases where the institution of judicial thought plays itself out.
Why would judges be biased in favor of lawyers? Barton provides plenty of reasons:
A brief study of judges -- who they are, how they are trained, what their jobs are like, and salary effects -- leads to the inevitable conclusion that judges will regularly favor the interests of lawyers over other litigants. Many judges rely upon lawyers to get or keep their jobs. Most state judges face some type of election (either contested or retention), and lawyers provide most of the elected judiciary's campaign donations. In elective states including merit selection states with retention elections bar associations frequently endorse judicial candidates, and conduct and publish "bar polls" on the judges. Many judges were selected for their positions through "merit plans" that place substantial selection authority in state and local bar associations. Any judges who hope to join the federal judiciary rely upon the ABA for a favorable rating. Bar associations have further massaged the judicial salary incentive by working tirelessly for higher salaries for judges.
Lawyers, it turns out, do much of a judge's work for him. So it's only natural that a judge would want to keep them happy:
