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:
A closer examination of the nuts and bolts of a judge's job also demonstrates how critical lawyers are to the work of judging. In the advocacy system most judges rely on the lawyers to do the great bulk of the work in trying, briefing, researching, or investigating cases. When the system is working properly the judges sit back and decide cases based on the legal and factual work of the lawyers. I've noted before how this aspect of the judicial incentive structure has led directly to higher barriers to entry, including the requirement of three years of law school and an ever more difficult bar exam because judges and current lawyers both profit when entry tightens. On a more basic level, most judges probably do not want to face a courtroom of disgruntled lawyers on a regular basis, simply because of their ongoing, working relationship.
Barton examines five key areas where the legal profession has clearly acted to protect its own interests:
* Attorney-client privilege;
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