What if law schools opened their own law firms?
August 19, 2011 8:29 AM Subscribe
The job market is saturated and graduates are unable to get hired anywhere to get proper training. Law professors Richard Rhee and Bradley Borden have a solution: law schools should open their own law firms.
IANAL, but it sounds like enlisting a law school's counsel would be less like going to a teaching hospital and more like getting your hair cut at the barber college.
posted by Strange Interlude at 8:34 AM on August 19, 2011 [8 favorites]
posted by Strange Interlude at 8:34 AM on August 19, 2011 [8 favorites]
I can just hear the first meeting in my head, "Well we are paying 200 lawyers almost nothing and no one wants to hire us...who do we sue?"
posted by Felex at 8:37 AM on August 19, 2011 [2 favorites]
posted by Felex at 8:37 AM on August 19, 2011 [2 favorites]
One nice thing about a saturated market is (hopefully) that poor people have better access to lawyers because of lower prices. Crappy lawyers, probably, but better than none at all.
posted by DU at 8:37 AM on August 19, 2011
posted by DU at 8:37 AM on August 19, 2011
If they're going to do that, they may as well establish a physically grueling residency program as well. Hours upon hours on your feet, helping the indigent sue their landlords for infestations and the city for not repairing sidewalks. Eight straight hours of discovery at 3 AM when you haven't gone to bed since in twenty-four hours. That should wittle down the amount of people who go to -- and manage to graduate from -- law school on a whim.
posted by griphus at 8:39 AM on August 19, 2011 [11 favorites]
posted by griphus at 8:39 AM on August 19, 2011 [11 favorites]
Umm, is this all that 'novel' or 'radical'? My law school has had a legal clinic for years and years, for just this sort of thing. And we were far from the only school to have one of these.
Granted, that was pre-grad instead of post-grad, but otherwise, this is exactly what is being proposed here.
What am I missing, here?
posted by Capt. Renault at 8:39 AM on August 19, 2011 [1 favorite]
Granted, that was pre-grad instead of post-grad, but otherwise, this is exactly what is being proposed here.
What am I missing, here?
posted by Capt. Renault at 8:39 AM on August 19, 2011 [1 favorite]
I don't think the solution to having too many lawyers is to find more law to practice, it's to make fewer lawyers. There are plenty of actually productive things all those people could do instead.
The thing is, we don't really have too many lawyers, we have too few people who can afford to hire lawyers. Think about the crushing case loads you hear about public defenders bearing, that's a problem of too few lawyers, not too many. There are plenty of people who would love to do those jobs, but we don't hire them because we don't put enough money into the public defender systems in this country.
Same thing is true in civil court. Plenty of people go into court unrepresented, who would love to have a lawyer and would be much better off if they did, if only they were able to afford one. The problem there is that the cost of law schooling makes it incredibly difficult for lawyers to operate at a rate anyone can afford.
There's room for plenty of more lawyers in the system; in ways that would have a positive impact on the lives of individuals and society, it's just that the money isn't there.
posted by Bulgaroktonos at 8:40 AM on August 19, 2011 [37 favorites]
The thing is, we don't really have too many lawyers, we have too few people who can afford to hire lawyers. Think about the crushing case loads you hear about public defenders bearing, that's a problem of too few lawyers, not too many. There are plenty of people who would love to do those jobs, but we don't hire them because we don't put enough money into the public defender systems in this country.
Same thing is true in civil court. Plenty of people go into court unrepresented, who would love to have a lawyer and would be much better off if they did, if only they were able to afford one. The problem there is that the cost of law schooling makes it incredibly difficult for lawyers to operate at a rate anyone can afford.
There's room for plenty of more lawyers in the system; in ways that would have a positive impact on the lives of individuals and society, it's just that the money isn't there.
posted by Bulgaroktonos at 8:40 AM on August 19, 2011 [37 favorites]
What about everyone else? For their benefit, we need tort reform and more lawyers not practicing law.
posted by cleancut at 8:42 AM on August 19, 2011
posted by cleancut at 8:42 AM on August 19, 2011
I don't think the solution to having too many lawyers is to find more law to practice, it's to make fewer lawyers. There are plenty of actually productive things all those people could do instead.
Not really. Most people represented by law school clinics(which are kind of like this), get incredibly high quality representation. Which would you rather have, a supervised student who has two cases or an overworked legal aid lawyer who has 100? Experience helps, but not that much.
posted by Bulgaroktonos at 8:42 AM on August 19, 2011 [4 favorites]
Not really. Most people represented by law school clinics(which are kind of like this), get incredibly high quality representation. Which would you rather have, a supervised student who has two cases or an overworked legal aid lawyer who has 100? Experience helps, but not that much.
posted by Bulgaroktonos at 8:42 AM on August 19, 2011 [4 favorites]
I have thought something similar for a while now. There's no reason law school has to be three years of classroom "learning" (which is rarely more than cramming an outline in the last several weeks) and there's a big gap between what law school teaches and the realities of practice. This could solve some of those issues.
Of course, the devil is in the implementation.
posted by gauche at 8:42 AM on August 19, 2011 [1 favorite]
Of course, the devil is in the implementation.
posted by gauche at 8:42 AM on August 19, 2011 [1 favorite]
One nice thing about a saturated market is (hopefully) that poor people have better access to lawyers because of lower prices.
Don't count on it, state budget cuts are taking place in numerous states overburdening the court system and limiting access to the public.
posted by any major dude at 8:44 AM on August 19, 2011 [1 favorite]
Don't count on it, state budget cuts are taking place in numerous states overburdening the court system and limiting access to the public.
posted by any major dude at 8:44 AM on August 19, 2011 [1 favorite]
Umm, is this all that 'novel' or 'radical'? My law school has had a legal clinic for years and years, for just this sort of thing.
Presumably the apprentice attorneys at a law school firm wouldn't be paying $35,000 (via loans!) for the privilege of working for free. Clinical legal education is a sick joke: pay out the nose in order to work under the supervision of someone who couldn't hack it in the real job market. Oh, and you're often doing precisely the kind of work that doesn't pay well or at all, so it's of limited use once you graduate.
Working a semester at a law clinic should come with a tuition offset for the real classes you take that semester.
One nice thing about a saturated market is (hopefully) that poor people have better access to lawyers because of lower prices.
Alas this has not proved to be the case. The recession means legal aid organizations are cash-strapped. Law school debt, malpractice insurance, and research service costs mean that there's a pretty high floor on the prices lawyers can charge. Other costs outside the lawyer's control (e.g. filing fees, expert witness fees) further raise that floor.
posted by jedicus at 8:45 AM on August 19, 2011 [1 favorite]
Presumably the apprentice attorneys at a law school firm wouldn't be paying $35,000 (via loans!) for the privilege of working for free. Clinical legal education is a sick joke: pay out the nose in order to work under the supervision of someone who couldn't hack it in the real job market. Oh, and you're often doing precisely the kind of work that doesn't pay well or at all, so it's of limited use once you graduate.
Working a semester at a law clinic should come with a tuition offset for the real classes you take that semester.
One nice thing about a saturated market is (hopefully) that poor people have better access to lawyers because of lower prices.
Alas this has not proved to be the case. The recession means legal aid organizations are cash-strapped. Law school debt, malpractice insurance, and research service costs mean that there's a pretty high floor on the prices lawyers can charge. Other costs outside the lawyer's control (e.g. filing fees, expert witness fees) further raise that floor.
posted by jedicus at 8:45 AM on August 19, 2011 [1 favorite]
Tie this to some sort of program like Public Defender Corps and it could be a very, very good thing. Let new attorneys learn the ropes by filling an actual social need.
posted by AdamCSnider at 8:47 AM on August 19, 2011 [2 favorites]
posted by AdamCSnider at 8:47 AM on August 19, 2011 [2 favorites]
The solution is quite simple, really: Have Congress make more laws that people can sue each other over.
posted by ZenMasterThis at 8:48 AM on August 19, 2011
posted by ZenMasterThis at 8:48 AM on August 19, 2011
There's no reason law school has to be three years of classroom "learning"
Indeed. I agree with a professor I had, who thought that law school should be changed to a year of nothing but research & writing classes, two at most, with a much lower student:teacher ratio. Rather than testing substantive knowledge, the bar exam should just be a series of MPTs. Legal doctrine classes should be left to advanced programs like the LL.M or SJD.
At that point, though, you really ought to just make law an undergraduate program, which is something else I (and most of the rest of the world) would agree with.
posted by jedicus at 8:49 AM on August 19, 2011 [2 favorites]
Indeed. I agree with a professor I had, who thought that law school should be changed to a year of nothing but research & writing classes, two at most, with a much lower student:teacher ratio. Rather than testing substantive knowledge, the bar exam should just be a series of MPTs. Legal doctrine classes should be left to advanced programs like the LL.M or SJD.
At that point, though, you really ought to just make law an undergraduate program, which is something else I (and most of the rest of the world) would agree with.
posted by jedicus at 8:49 AM on August 19, 2011 [2 favorites]
Clinical legal education is a sick joke: pay out the nose in order to work under the supervision of someone who couldn't hack it in the real job market.
While I don't disagree that paying to work for free is crazy (even though I did it), that second part is totally not my experience. My clinic's staff had two levels: professors and LLM students. The LLM students were by and large graduates from top tier law schools, who went to have careers in the field we were studying in (criminal defense). The professors included two people who are very well respected in the field of criminal defense, and a guy who got appointed to the bench the year after I graduated.
posted by Bulgaroktonos at 8:52 AM on August 19, 2011 [3 favorites]
While I don't disagree that paying to work for free is crazy (even though I did it), that second part is totally not my experience. My clinic's staff had two levels: professors and LLM students. The LLM students were by and large graduates from top tier law schools, who went to have careers in the field we were studying in (criminal defense). The professors included two people who are very well respected in the field of criminal defense, and a guy who got appointed to the bench the year after I graduated.
posted by Bulgaroktonos at 8:52 AM on August 19, 2011 [3 favorites]
At that point, though, you really ought to just make law an undergraduate program, which is something else I (and most of the rest of the world) would agree with.
That's interesting. Here in Canada, my school (UNB) is strongly considering changing from an LLB to a JD, to emphasize the fact that we are not an undergraduate program. Many of the schools in Canada have already done so, especially the big Ontario ones. Specifically, the argument for it is because the LLB doesn't reflect the fact that we are a post-undergraduate degree (I hesitate to say graduate degree), and so competing internationally with you JD'd Americans is difficult.
Of course, this wouldn't actually change the designation of our program to a graduate degree, we wouldn't become part of the grad students' association or anything. Purely cosmetic.
posted by Lemurrhea at 8:55 AM on August 19, 2011
That's interesting. Here in Canada, my school (UNB) is strongly considering changing from an LLB to a JD, to emphasize the fact that we are not an undergraduate program. Many of the schools in Canada have already done so, especially the big Ontario ones. Specifically, the argument for it is because the LLB doesn't reflect the fact that we are a post-undergraduate degree (I hesitate to say graduate degree), and so competing internationally with you JD'd Americans is difficult.
Of course, this wouldn't actually change the designation of our program to a graduate degree, we wouldn't become part of the grad students' association or anything. Purely cosmetic.
posted by Lemurrhea at 8:55 AM on August 19, 2011
It's not that there are too many lawyers, it's that there are way too many law schools.
posted by Sphinx at 8:57 AM on August 19, 2011
posted by Sphinx at 8:57 AM on August 19, 2011
Replacing the third year of law school in the U.S. with a paid clinic/apprenticeship position would make an enormous difference in easing the crippling debt loads carried by many graduates. Get rid of the $50k of debt incurred in the third year, add (say) $40k of salary for the clinic year, and you're talking about a swing of nearly $100k, with no appreciable loss in training and more likely a significant gain. The result would be less pressure for graduates to find high-paying jobs and more flexibility to take jobs in the government, public interest, etc.
posted by brain_drain at 8:57 AM on August 19, 2011 [10 favorites]
posted by brain_drain at 8:57 AM on August 19, 2011 [10 favorites]
While I don't disagree that paying to work for free is crazy (even though I did it), that second part is totally not my experience.
I applaud your school's clinical program, then, but I would call that the exception rather than the rule.
posted by jedicus at 9:00 AM on August 19, 2011
I applaud your school's clinical program, then, but I would call that the exception rather than the rule.
posted by jedicus at 9:00 AM on August 19, 2011
What about everyone else? For their benefit, we need tort reform and more lawyers not practicing law
Tort reform benefits corporations and tortfeasors at the expense of everyone else. The problem is that the defense bar doesn't settle fast.
I do think a lot of cases could be easily settled no-fault at an early stage with low costs. But that's just my own experience.
posted by Ironmouth at 9:04 AM on August 19, 2011 [7 favorites]
Tort reform benefits corporations and tortfeasors at the expense of everyone else. The problem is that the defense bar doesn't settle fast.
I do think a lot of cases could be easily settled no-fault at an early stage with low costs. But that's just my own experience.
posted by Ironmouth at 9:04 AM on August 19, 2011 [7 favorites]
Then form an intercollegiate league similar to the NCAA.
Schools pitted against each other one case at a time, culminating in the end of the season Law Bowl.
Go to the head of the class lawsuit!
posted by pianomover at 9:04 AM on August 19, 2011 [3 favorites]
Schools pitted against each other one case at a time, culminating in the end of the season Law Bowl.
Go to the head of the class lawsuit!
posted by pianomover at 9:04 AM on August 19, 2011 [3 favorites]
I do think this is a brilliant idea. It also would reduce pressure on law schools to charge outrageous fees for which students must take out insane loans, requiring them to charge $500 an hour to pay.
posted by Ironmouth at 9:07 AM on August 19, 2011
posted by Ironmouth at 9:07 AM on August 19, 2011
Is the problem really that there aren't enough law firms, or is the problem that the buying public (and businesses) just don't want to/can't pay as much in legal fees with incomes and receivables down?
The only way this will work is if the new frims undercut the established ones and drop the cost of legal services generally. Lawyers incomes drop as a result. What am I missing? Is there some structural problem in the legal employment marketplace?
posted by bonehead at 9:12 AM on August 19, 2011
The only way this will work is if the new frims undercut the established ones and drop the cost of legal services generally. Lawyers incomes drop as a result. What am I missing? Is there some structural problem in the legal employment marketplace?
posted by bonehead at 9:12 AM on August 19, 2011
Is there some structural problem in the legal employment marketplace?
Yeah: the absurd cost of law school, for one. The structure of the law firm, for another. A good rule of thumb is that an associate is only paid 1/3rd of what he or she bills. So if an associate bills $150/hour, he or she will be paid a salary roughly equivalent to $50/hour, 40 hours per week. The partners take 1/3rd as profit and another 1/3rd goes to overhead. Some of the overhead is reasonable (e.g. administrative assistants, research services, malpractice insurance), but some it is not (e.g. fancy offices and other perks that primarily benefit the partners anyway).
If partners were willing to take a smaller share of the profits, and if firms were willing to lower their overhead, then firms could hire more associates. Instead, what happens in a recession is that the senior partners circle the wagons and start firing associates and even junior partners in order to maintain their own incomes.
posted by jedicus at 9:27 AM on August 19, 2011 [1 favorite]
Yeah: the absurd cost of law school, for one. The structure of the law firm, for another. A good rule of thumb is that an associate is only paid 1/3rd of what he or she bills. So if an associate bills $150/hour, he or she will be paid a salary roughly equivalent to $50/hour, 40 hours per week. The partners take 1/3rd as profit and another 1/3rd goes to overhead. Some of the overhead is reasonable (e.g. administrative assistants, research services, malpractice insurance), but some it is not (e.g. fancy offices and other perks that primarily benefit the partners anyway).
If partners were willing to take a smaller share of the profits, and if firms were willing to lower their overhead, then firms could hire more associates. Instead, what happens in a recession is that the senior partners circle the wagons and start firing associates and even junior partners in order to maintain their own incomes.
posted by jedicus at 9:27 AM on August 19, 2011 [1 favorite]
The only way this will work is if the new frims undercut the established ones and drop the cost of legal services generally. Lawyers incomes drop as a result. What am I missing? Is there some structural problem in the legal employment marketplace?
The cost of legal education. Can't pay off the loans without charging a lot.
But also clients are terrible at estimating the value of legal services, on both ends. They undervalue defense and over value plaintiff's services, expecting too much.
posted by Ironmouth at 9:28 AM on August 19, 2011
The cost of legal education. Can't pay off the loans without charging a lot.
But also clients are terrible at estimating the value of legal services, on both ends. They undervalue defense and over value plaintiff's services, expecting too much.
posted by Ironmouth at 9:28 AM on August 19, 2011
Okay -- we have law schools. We have law firms. Where is the synergy? All of the supposed benefits they describe are independent of the link between school and firm. Low cost of labor? Law firms can do that already by paying low wages. Training? Law firms can and do train junior lawyers already.
posted by grobstein at 9:31 AM on August 19, 2011
posted by grobstein at 9:31 AM on August 19, 2011
Extrapolating from the mouse utopia FPP, the lawyers will now enter a stage of random violence and rampant pansexualism, followed by a catastrophic population crash.
posted by qxntpqbbbqxl at 9:38 AM on August 19, 2011 [15 favorites]
posted by qxntpqbbbqxl at 9:38 AM on August 19, 2011 [15 favorites]
The structure of the law firm, for another. A good rule of thumb is that an associate is only paid 1/3rd of what he or she bills.
That's not out of line for other sectors, by the by. Many engineering and environmental consultancies in my experience have bill-out multiples in the 3x or even 5x range (cf Exponent, SAIC, to name some of the bigger ones). Mine is 3x for commercial work, cot-recovered work, a rate chosen to not undercut industry. It does depend on the job: field work is 3x, legal work (expert witness etc..) is 5x, mostly because EWs don't always get paid incidentals. Those rates don't seem at unusual to me.
posted by bonehead at 9:47 AM on August 19, 2011
That's not out of line for other sectors, by the by. Many engineering and environmental consultancies in my experience have bill-out multiples in the 3x or even 5x range (cf Exponent, SAIC, to name some of the bigger ones). Mine is 3x for commercial work, cot-recovered work, a rate chosen to not undercut industry. It does depend on the job: field work is 3x, legal work (expert witness etc..) is 5x, mostly because EWs don't always get paid incidentals. Those rates don't seem at unusual to me.
posted by bonehead at 9:47 AM on August 19, 2011
So I ran the numbers and it's ludicrous to think this idea would work on any kind of scale.
About 45,000 people graduate from law school every year. Last year, approximately 5,580 of them were unemployed 9 months after graduation. Another 7,965 had only a temporary job (not counting the technically temporary but ultimately lucrative judicial clerkships). So let's say these are the people we need to hire.
Let's keep the salaries very low: $35,000 per year, perhaps $50,000 in total cost to the employer after benefits, FICA, etc. The authors suggest either a 3 year or 6 year term, so that's between $2 and $4 billion per year once the program is full.
But the attorney salaries are far from the whole story. They need space to work, advertising, malpractice insurance, administrative assistants, accountants, and research service subscriptions. And of course the supervising senior attorneys aren't going to work for free. A good rule of thumb is that overhead for a lawyer in a firm is equal to that lawyer's pay (in this case there's no 1/3rd going to partner profits). So we'll have to double the above figures.
Unless the plan is to rob Peter to pay Paul (i.e. to take revenue away from existing law firms), this scheme will require the legal services market in the US (currently about $220 billion) to grow by 2-4%. The problem is that the unmet demand for legal services in the US is primarily held by people who can't afford to pay. The people who can pay already do. So there's simply no money for this idea. Running it as a school-funded make-work program wouldn't work, either. The cost per school would be greater than the entire operating budget of most law schools.
Another problem is that the distribution of the unemployed is far from equal. The schools with abysmal employment rates are the very ones that can't afford to undertake a project like this.
Yet another problem is that the whole idea is functionally identical to graduates simply starting firms of their own. Well, people do that all the time and surprise, surprise it doesn't work very well.
And finally, if this is such a great idea, then why wouldn't the senior attorneys simply start firms of their own, hire the grads on the cheap, and then run it as a for-profit business?
posted by jedicus at 10:10 AM on August 19, 2011 [4 favorites]
About 45,000 people graduate from law school every year. Last year, approximately 5,580 of them were unemployed 9 months after graduation. Another 7,965 had only a temporary job (not counting the technically temporary but ultimately lucrative judicial clerkships). So let's say these are the people we need to hire.
Let's keep the salaries very low: $35,000 per year, perhaps $50,000 in total cost to the employer after benefits, FICA, etc. The authors suggest either a 3 year or 6 year term, so that's between $2 and $4 billion per year once the program is full.
But the attorney salaries are far from the whole story. They need space to work, advertising, malpractice insurance, administrative assistants, accountants, and research service subscriptions. And of course the supervising senior attorneys aren't going to work for free. A good rule of thumb is that overhead for a lawyer in a firm is equal to that lawyer's pay (in this case there's no 1/3rd going to partner profits). So we'll have to double the above figures.
Unless the plan is to rob Peter to pay Paul (i.e. to take revenue away from existing law firms), this scheme will require the legal services market in the US (currently about $220 billion) to grow by 2-4%. The problem is that the unmet demand for legal services in the US is primarily held by people who can't afford to pay. The people who can pay already do. So there's simply no money for this idea. Running it as a school-funded make-work program wouldn't work, either. The cost per school would be greater than the entire operating budget of most law schools.
Another problem is that the distribution of the unemployed is far from equal. The schools with abysmal employment rates are the very ones that can't afford to undertake a project like this.
Yet another problem is that the whole idea is functionally identical to graduates simply starting firms of their own. Well, people do that all the time and surprise, surprise it doesn't work very well.
And finally, if this is such a great idea, then why wouldn't the senior attorneys simply start firms of their own, hire the grads on the cheap, and then run it as a for-profit business?
posted by jedicus at 10:10 AM on August 19, 2011 [4 favorites]
Replacing the third year of law school in the U.S. with a paid clinic/apprenticeship position would make an enormous difference in easing the crippling debt loads carried by many graduates.
It would, but where would the money for this come from? Many law students are already working for free to gain experience over their summers and in term-time internships. There simply isn't funding available for the kind of work that law clinics tend to do. That's precisely why those clinics provide a valuable service; law students do work that nobody else is doing because there's no money in it, and are compensated in experience.
I can't come to any conclusion other than this: law school tuition is too high. I don't think we need to pay students to do clinics, I think we simply need to charge them less, all six semesters. Of course, as long as the US News cabal runs the show, schools will continue to have perverse incentives to raise tuition every year so they can compete on such important metrics of educational quality as "expenditures per student." (In other words, how much of your students' own money are you spending on them. How this became any sort of measuring stick boggles the mind.)
posted by dixiecupdrinking at 10:12 AM on August 19, 2011 [1 favorite]
It would, but where would the money for this come from? Many law students are already working for free to gain experience over their summers and in term-time internships. There simply isn't funding available for the kind of work that law clinics tend to do. That's precisely why those clinics provide a valuable service; law students do work that nobody else is doing because there's no money in it, and are compensated in experience.
I can't come to any conclusion other than this: law school tuition is too high. I don't think we need to pay students to do clinics, I think we simply need to charge them less, all six semesters. Of course, as long as the US News cabal runs the show, schools will continue to have perverse incentives to raise tuition every year so they can compete on such important metrics of educational quality as "expenditures per student." (In other words, how much of your students' own money are you spending on them. How this became any sort of measuring stick boggles the mind.)
posted by dixiecupdrinking at 10:12 AM on August 19, 2011 [1 favorite]
What if we forgave law school debt for people who worked as public defenders for 5 years? Probably this would be a terrible idea for some reason, but what are those reasons?
posted by KathrynT at 10:13 AM on August 19, 2011
posted by KathrynT at 10:13 AM on August 19, 2011
What if we forgave law school debt for people who worked as public defenders for 5 years?
The federal government forgives all government-backed student loans for people who work in public service for ten years, during which time they only have to make payments as a pro-rated portion of their income.
posted by dixiecupdrinking at 10:15 AM on August 19, 2011 [1 favorite]
The federal government forgives all government-backed student loans for people who work in public service for ten years, during which time they only have to make payments as a pro-rated portion of their income.
posted by dixiecupdrinking at 10:15 AM on August 19, 2011 [1 favorite]
Unless the plan is to rob Peter to pay Paul (i.e. to take revenue away from existing law firms), this scheme will require the legal services market in the US (currently about $220 billion) to grow by 2-4%.
That was my point. We're in a downturn and law has elastic demand, being somewhat discretionary. Clients can always opt not to sue or be too broke to afford it. Where would the extra client base come from, especially in a recession?
posted by bonehead at 10:16 AM on August 19, 2011
That was my point. We're in a downturn and law has elastic demand, being somewhat discretionary. Clients can always opt not to sue or be too broke to afford it. Where would the extra client base come from, especially in a recession?
posted by bonehead at 10:16 AM on August 19, 2011
Put it another way, if the plan is to hire more lawyers in a mature or even shrinking market, the only way that can possibly work is if the profession takes a pay cut.
posted by bonehead at 10:18 AM on August 19, 2011
posted by bonehead at 10:18 AM on August 19, 2011
dixiecupdrinking: Fair point, I'm not sure where the money would come from (I leave that to the genius proponents of the law school/firm plan). But student debt could still be reduced by 33% if the third year of law school were eliminated. Of course that will never happen since it would likely require mass layoffs of law school faculty members.
posted by brain_drain at 10:22 AM on August 19, 2011
posted by brain_drain at 10:22 AM on August 19, 2011
As mentioned above, good clinical programs in law schools make law students into better lawyers. The comment above about legal clinics being run by lawyers who couldn't hack it in the real world does not comport with my experience with legal clinics. As a student, as a lawyer, and now as an analyst with a reform NPO, legal clinics associated with law schools provide excellent representation to chronically underserved markets. They alleviate the pressure on public defender offices; they take cases private legal aid services don't have resources to handle; and create continuity of services in poverty law practice that clients rarely get. A well-run, decently financed legal clinic at a law school attracts top-notch attorneys (generally with a passion for social justice) by freeing them from the financial and management worries of private practice or liberating them from the lip-service-to-pro-bono-but-don't-let-it-cut-into-your-REAL-work ethos of law firms. Thank god for clinical legal education.
It's also the only useful class any law student takes, except the seminars Lexis-Nexis and Westlaw give. Legal education in the US needs serious reform. (I'd go so far as to say the entire American concept of the legal profession needs serious reform) Practical legal education (ie, clinical class) is not a radical concept, but it is one that is unjustly ignored.
posted by crush-onastick at 10:37 AM on August 19, 2011 [3 favorites]
It's also the only useful class any law student takes, except the seminars Lexis-Nexis and Westlaw give. Legal education in the US needs serious reform. (I'd go so far as to say the entire American concept of the legal profession needs serious reform) Practical legal education (ie, clinical class) is not a radical concept, but it is one that is unjustly ignored.
posted by crush-onastick at 10:37 AM on August 19, 2011 [3 favorites]
So the law school is going to run a law firm that competes directly with the alumni from which the law school solicits donations. Mmmm, no.
posted by Outlawyr at 10:46 AM on August 19, 2011 [3 favorites]
posted by Outlawyr at 10:46 AM on August 19, 2011 [3 favorites]
They should do what we do with programmers and force them out of the industry when they hit 30. Everyone knows anyone over 30 is just dead weight.
posted by Ad hominem at 10:54 AM on August 19, 2011 [1 favorite]
posted by Ad hominem at 10:54 AM on August 19, 2011 [1 favorite]
Just get rid of the law schools that exist as separate institutions, and have the law firms themselves educate the future lawyers who want to work for that firm.
You go to school at Dewey, Cheatham and Howe, they either pay for your education and for you to pass the bar and then garnish your wages once you have to cover those costs, or you agree to work for that firm only once you pass the bar for a period equal to the years you spent getting your law degree and passing the bar.
After that time, you're an established lawyer and can maybe open your own firm if you want. Maybe alumni who start their own firms could use law students as paralegals to help them pay off their debt to DCH in a sub-contractor type of deal. I'm just making this all up as I go along, here. Help me out.
posted by misha at 11:07 AM on August 19, 2011
You go to school at Dewey, Cheatham and Howe, they either pay for your education and for you to pass the bar and then garnish your wages once you have to cover those costs, or you agree to work for that firm only once you pass the bar for a period equal to the years you spent getting your law degree and passing the bar.
After that time, you're an established lawyer and can maybe open your own firm if you want. Maybe alumni who start their own firms could use law students as paralegals to help them pay off their debt to DCH in a sub-contractor type of deal. I'm just making this all up as I go along, here. Help me out.
posted by misha at 11:07 AM on August 19, 2011
This seems like pretty much what biology has started doing. No tenure track jobs for PhDs? Great, cheap postdocs for everyone!
posted by maryr at 11:17 AM on August 19, 2011 [2 favorites]
posted by maryr at 11:17 AM on August 19, 2011 [2 favorites]
Richard Rhee and Bradley Borden have a solution: law schools should open their own law firms.
Yes, because if there's any problem this society faces, it's not enough working lawyers.
posted by Mental Wimp at 11:34 AM on August 19, 2011
Yes, because if there's any problem this society faces, it's not enough working lawyers.
posted by Mental Wimp at 11:34 AM on August 19, 2011
You go to school at Dewey, Cheatham and Howe, they either pay for your education and for you to pass the bar and then garnish your wages once you have to cover those costs, or you agree to work for that firm only once you pass the bar for a period equal to the years you spent getting your law degree and passing the bar.
As they're currently structured I don't think the legal ethics rules would not allow this; law firms are not allowed to enter into employment agreements that restrict the right of the employee to practice law after the relationship is terminated with a minor exception for lawyers retiring from practice but still receiving benefits from the firm.
posted by Bulgaroktonos at 11:43 AM on August 19, 2011 [1 favorite]
As they're currently structured I don't think the legal ethics rules would not allow this; law firms are not allowed to enter into employment agreements that restrict the right of the employee to practice law after the relationship is terminated with a minor exception for lawyers retiring from practice but still receiving benefits from the firm.
posted by Bulgaroktonos at 11:43 AM on August 19, 2011 [1 favorite]
But hasn't this been an issue for quite a while, even in a good market? There are just too many darn lawyers.
posted by stormpooper at 12:29 PM on August 19, 2011 [1 favorite]
posted by stormpooper at 12:29 PM on August 19, 2011 [1 favorite]
Hey, great idea for a new political party: "The Lawyers are Too Damn Many!"
posted by Mental Wimp at 12:38 PM on August 19, 2011
posted by Mental Wimp at 12:38 PM on August 19, 2011
There are just too many darn lawyers.
You know, I've already sort of made this point, but it's worth making again. It's easy to claim that there are too many lawyers, but it's really hard to prove it at least for me. Walk into any courthouse in America, and here's what you're likely to see: a courtroom where two public defenders each of twenty cases set for trial, domestic violence victims (usually unrepresented) asking for protective orders against alleged abuser (basically always unrepresented), a landlord-tenant court where basically no tenant has a lawyer, and a family court where a huge number of the custody and child support hearings involve at least one pro se party.
Plenty of these people want lawyers, and the public good would be served by ensuring that everyone was helped through the legal system in a way that ensured that they understood the process and that system understood them and their claims. Lawyers can do this, plenty of out of work/temporary lawyers would LOVE to do this, but the money's not there. The money can be there, if we put more money in our public defender/civil legal aid systems, or if we make it cheaper to become and stay a lawyer (I pay about $450 a year just for the privilege of being barred in two jurisdictions) maybe those lawyers will stop needing to do document review to pay their student loans and can actually be lawyers.
posted by Bulgaroktonos at 12:46 PM on August 19, 2011 [9 favorites]
You know, I've already sort of made this point, but it's worth making again. It's easy to claim that there are too many lawyers, but it's really hard to prove it at least for me. Walk into any courthouse in America, and here's what you're likely to see: a courtroom where two public defenders each of twenty cases set for trial, domestic violence victims (usually unrepresented) asking for protective orders against alleged abuser (basically always unrepresented), a landlord-tenant court where basically no tenant has a lawyer, and a family court where a huge number of the custody and child support hearings involve at least one pro se party.
Plenty of these people want lawyers, and the public good would be served by ensuring that everyone was helped through the legal system in a way that ensured that they understood the process and that system understood them and their claims. Lawyers can do this, plenty of out of work/temporary lawyers would LOVE to do this, but the money's not there. The money can be there, if we put more money in our public defender/civil legal aid systems, or if we make it cheaper to become and stay a lawyer (I pay about $450 a year just for the privilege of being barred in two jurisdictions) maybe those lawyers will stop needing to do document review to pay their student loans and can actually be lawyers.
posted by Bulgaroktonos at 12:46 PM on August 19, 2011 [9 favorites]
...the chief justice described the plight of the average middle-class Canadian faced with litigation: “Their options are grim: use up the family assets . . . become their own lawyer; or give up.” Must the words “give up” be inscribed on every courthouse portal in the land?
posted by bonehead at 12:59 PM on August 19, 2011
posted by bonehead at 12:59 PM on August 19, 2011
This has been an issue in Baltimore recently. With the former dean of the law school being forced to resign after airing some dirty laundry in public that the law school draws in HUGE amounts of money for the school, which is then used to support less popular programs.
posted by codacorolla at 1:02 PM on August 19, 2011
posted by codacorolla at 1:02 PM on August 19, 2011
Codacorolla, yup. Our law school is going from 80 -> 90 students, an a minor tuition increase this year. Our law school is doing just fine, making (some) money and what have you. However, the school has a deficit, due to budget overruns on some construction of a new sports facility (shocking!) and provincial cutbacks in funding (which won't go much better now that our minister of education doesn't have a post-secondary degree, but I rant). So we have to "do our part" which just means cover their ass.
At least we're using it as leverage to get some permanent positions available for some good profs, but still. It's interesting that law schools are generally (always?) attached to universities, when I'm not sure there's a need to be.
posted by Lemurrhea at 1:25 PM on August 19, 2011
At least we're using it as leverage to get some permanent positions available for some good profs, but still. It's interesting that law schools are generally (always?) attached to universities, when I'm not sure there's a need to be.
posted by Lemurrhea at 1:25 PM on August 19, 2011
The problem is that the defense bar doesn't settle fast.
Sez you. We try to settle cases as fast as we can. The problem is that plaintiff's attorneys, who don't get paid unless they win and get paid directly in proportion to the amount they win, make ludicrous claims.
Right now I'm helping defend a case where the plaintiff incurred about $2,500 in medicals after her fall (which my client paid), then did nothing for a year, then got surgery for the treatment of arthritis, bumping her total to about $25,000. Not only is she claiming that all of this is related to her sprain, with no evidence to that effect, but she's making a demand for $400,000.
Don't you tell me the defense bar doesn't settle.
posted by valkyryn at 1:47 PM on August 19, 2011
Sez you. We try to settle cases as fast as we can. The problem is that plaintiff's attorneys, who don't get paid unless they win and get paid directly in proportion to the amount they win, make ludicrous claims.
Right now I'm helping defend a case where the plaintiff incurred about $2,500 in medicals after her fall (which my client paid), then did nothing for a year, then got surgery for the treatment of arthritis, bumping her total to about $25,000. Not only is she claiming that all of this is related to her sprain, with no evidence to that effect, but she's making a demand for $400,000.
Don't you tell me the defense bar doesn't settle.
posted by valkyryn at 1:47 PM on August 19, 2011
The federal government forgives all government-backed student loans for people who work in public service for ten years, during which time they only have to make payments as a pro-rated portion of their income.
This is true as far as it goes. But law students are only eligible for about $66,000 in federally-backed loans, and many if not most students wind up closer to $100,000 in debt after they finish. Tuition alone can easily run to $90,000, and most students have to borrow living expenses on top of that.
The result is that for a good number of law grads, upwards of 50% of their total indebtedness is from private sources which aren't eligible for forgiveness.
So yes, loan forgiveness is a great idea, and exists in some form, but only for government loans, which are just one part of the problem.
posted by valkyryn at 1:51 PM on August 19, 2011
This is true as far as it goes. But law students are only eligible for about $66,000 in federally-backed loans, and many if not most students wind up closer to $100,000 in debt after they finish. Tuition alone can easily run to $90,000, and most students have to borrow living expenses on top of that.
The result is that for a good number of law grads, upwards of 50% of their total indebtedness is from private sources which aren't eligible for forgiveness.
So yes, loan forgiveness is a great idea, and exists in some form, but only for government loans, which are just one part of the problem.
posted by valkyryn at 1:51 PM on August 19, 2011
On the "there are too many lawyers" front, here is a simple test I perform to see if an opinion I hold is really something I have thought out and truly believe, or something inserted in my head by the media and other shapers of opinion which I have never really devoted serious critical thinking to: would rich people want me to hold this opinion? Because I know I ain't rich, so there is no reason I would hold an opinion a rich person would want me to hold (note that were this test widely adopted it would cause the Tea Party to cease to exist overnight). So why do I hold this opinion a rich person would want me to hold? Because maybe its based on a seed of truth or prejudice or fear or frustration, but then every media outlet has been presenting stories devised to make me hold that opinion for my entire lifetime and they have been doing the same thing to my friends and family until we repeat that opinion to each other in a feedback loop and then suddenly it is settled public opinion. You know what every rich person in America could agree on? There are too many lawyers. Because the ones that work for them tell them not to do things they want to do and the ones that don't work for them make them pay money to the people they hurt when they do those things anyway. Now if you are not rich and you think there are too many lawyers, you may have reached that opinion through critical thinking or past experience or both, but I encourage you to take a good hard look at it and make sure.
posted by ND¢ at 2:01 PM on August 19, 2011 [6 favorites]
posted by ND¢ at 2:01 PM on August 19, 2011 [6 favorites]
Didn't it used to be possible in some states to take the bar exam after X years of experience in doing paralegal-type stuff? (You still had to make sure you could pass it — but my understanding is that you were allowed to take it if you'd done some extra study on your own time.)
So corporate apprenticeship instead of law school seems like maybe it's not that far-fetched. On the other hand, "internships" are also a huge scam right now, so I'm not sure expanding the practice is going to be that great for anyone.
posted by nebulawindphone at 2:01 PM on August 19, 2011
So corporate apprenticeship instead of law school seems like maybe it's not that far-fetched. On the other hand, "internships" are also a huge scam right now, so I'm not sure expanding the practice is going to be that great for anyone.
posted by nebulawindphone at 2:01 PM on August 19, 2011
Plenty of these people want lawyers, and the public good would be served by ensuring that everyone was helped through the legal system in a way that ensured that they understood the process and that system understood them and their claims.
Oh, people want lawyers, yes, that's not the issue. They need lawyers, because we have so much litigation and prosecution going on. After all, we have a higher proportion of people in jail than just about any other country. We also file more law suits per capita. This is not coincidental to the fact that we have more lawyers per capita than any other country.
The problem isn't the demand for lawyers, it's the fact that the people who need them but don't have them can't pay for them. My brother and several friends have tried to make a living servicing clients in need and it's hard to make a living doing so. The clients need the services and are very grateful, but they just don't have the resources. Big firms that have specialized in things like bankruptcy vacuum up pretty much all the cases with some money attached, so the other lawyers are left with the dregs, i.e., those with no assets.
So the problem isn't demand, it's that there is no mechanism to pay for the additional work. And a lot of that work is driven by the fact that there are already too many lawyers generating work for themselves. The smartest ones have effectively sucked up all the funds available for legal work, leaving the rest of the bar to suck wind.
posted by Mental Wimp at 2:03 PM on August 19, 2011
Oh, people want lawyers, yes, that's not the issue. They need lawyers, because we have so much litigation and prosecution going on. After all, we have a higher proportion of people in jail than just about any other country. We also file more law suits per capita. This is not coincidental to the fact that we have more lawyers per capita than any other country.
The problem isn't the demand for lawyers, it's the fact that the people who need them but don't have them can't pay for them. My brother and several friends have tried to make a living servicing clients in need and it's hard to make a living doing so. The clients need the services and are very grateful, but they just don't have the resources. Big firms that have specialized in things like bankruptcy vacuum up pretty much all the cases with some money attached, so the other lawyers are left with the dregs, i.e., those with no assets.
So the problem isn't demand, it's that there is no mechanism to pay for the additional work. And a lot of that work is driven by the fact that there are already too many lawyers generating work for themselves. The smartest ones have effectively sucked up all the funds available for legal work, leaving the rest of the bar to suck wind.
posted by Mental Wimp at 2:03 PM on August 19, 2011
One attorney for every 500 American citizens. One Japanese attorney for every 10,000 Japanese citizens. That says it all.
What the American legal system needs is more transparent legislation instead of the gibberish we get from these ex-attorney legislators and their attorney-laden staffs. We need *less* attorneys in our already overly litigious society. We need attorneys because they have created their own language and arcane procedures. We need attorneys because laws and legal procedures that should be *easy* to understand require what amounts to a legal translator.
Mostly, that's what attorneys are, they're simply "legal translators" of the very language we need to keep our society civil - a language that attorneys and their kind are responsible for creating. Nice gig, huh? There is NO way that we should be having to pay attorneys $500-$600 per hour to take us through any process other than major Supreme Court decisions. We are up to our eyeballs with DRM, IP, and other kinds of legal action because *attorneys* instigate those actions.
Who do you think pays for all the legal crap that goes on in IP settlements - you do, and I do. the attorneys? They walk away with a pile of $$$ - on both sides. I call scam!
The entire profession is filled with people who overcharge for translation skills, period! Would we like to see our Courts made more efficient? Clean up our legal language so that it's transparent and get rid of 90% of American attorneys.
Here, in this example, we have law school professors who are already charging 3x the going rate for tuition at most other professional schools wanting to start their own law firms? Most of their students are struggling to find work. Get *rid* of these parasites. We have lawyers because we have lawyers. We have lawyers because most of the people in Congress, and their staffs, come from the legal profession. What a concept. It's as if there was a special profession dedicated to helping explain how to drive your car, and that same profession was the group that was responsible for creating the driver's manual. This is the legal profession, in a nutshell.
There are some good attorneys, and we do need help with the law from time to time, but the VAST majority of our law could and should be made so that the common person can understand it, read it as easily as a novel, minus all the bullshit legalese that we hire attorneys for.
So, instead of turning law schools into law firms, let shut most of them down and go back to the legal clerk system that we had before these institutional rackets got their hands in our pockets.
posted by Vibrissae at 2:40 PM on August 19, 2011 [3 favorites]
What the American legal system needs is more transparent legislation instead of the gibberish we get from these ex-attorney legislators and their attorney-laden staffs. We need *less* attorneys in our already overly litigious society. We need attorneys because they have created their own language and arcane procedures. We need attorneys because laws and legal procedures that should be *easy* to understand require what amounts to a legal translator.
Mostly, that's what attorneys are, they're simply "legal translators" of the very language we need to keep our society civil - a language that attorneys and their kind are responsible for creating. Nice gig, huh? There is NO way that we should be having to pay attorneys $500-$600 per hour to take us through any process other than major Supreme Court decisions. We are up to our eyeballs with DRM, IP, and other kinds of legal action because *attorneys* instigate those actions.
Who do you think pays for all the legal crap that goes on in IP settlements - you do, and I do. the attorneys? They walk away with a pile of $$$ - on both sides. I call scam!
The entire profession is filled with people who overcharge for translation skills, period! Would we like to see our Courts made more efficient? Clean up our legal language so that it's transparent and get rid of 90% of American attorneys.
Here, in this example, we have law school professors who are already charging 3x the going rate for tuition at most other professional schools wanting to start their own law firms? Most of their students are struggling to find work. Get *rid* of these parasites. We have lawyers because we have lawyers. We have lawyers because most of the people in Congress, and their staffs, come from the legal profession. What a concept. It's as if there was a special profession dedicated to helping explain how to drive your car, and that same profession was the group that was responsible for creating the driver's manual. This is the legal profession, in a nutshell.
There are some good attorneys, and we do need help with the law from time to time, but the VAST majority of our law could and should be made so that the common person can understand it, read it as easily as a novel, minus all the bullshit legalese that we hire attorneys for.
So, instead of turning law schools into law firms, let shut most of them down and go back to the legal clerk system that we had before these institutional rackets got their hands in our pockets.
posted by Vibrissae at 2:40 PM on August 19, 2011 [3 favorites]
Who do you think pays for all the legal crap that goes on in IP settlements - you do, and I do. the attorneys? They walk away with a pile of $$$ - on both sides.
Perhaps, but attorneys don't create disputes or choose to pursue them. Their clients do. There has to be some system to resolve them, and the issues involved are often complicated. There is much more than simply complicated jargon standing in the way of laypeople being able to handle major litigation. If you have a concrete, workable alternative model to suggest, I'm sure a lot of people would be happy to hear it.
posted by dixiecupdrinking at 2:57 PM on August 19, 2011 [1 favorite]
Perhaps, but attorneys don't create disputes or choose to pursue them. Their clients do. There has to be some system to resolve them, and the issues involved are often complicated. There is much more than simply complicated jargon standing in the way of laypeople being able to handle major litigation. If you have a concrete, workable alternative model to suggest, I'm sure a lot of people would be happy to hear it.
posted by dixiecupdrinking at 2:57 PM on August 19, 2011 [1 favorite]
We have lawyers because most of the people in Congress, and their staffs, come from the legal profession
This is not true. Only 38% of Representatives have law degrees. There might be a few non-degree holding attorneys in there, but not enough to bring it up to a majority. The Senate is a bit different: 55% have law degrees. And of course not all people with law degrees ever practice law.
I would agree that there needs to be a massive overhaul of the law at both the state and federal levels (something like a Law Commission). But non-lawyers (or I should say non-experts) often do a terrible job of drafting laws. Removing lawyers from the law drafting and law reform process is not the answer.
posted by jedicus at 3:02 PM on August 19, 2011 [2 favorites]
This is not true. Only 38% of Representatives have law degrees. There might be a few non-degree holding attorneys in there, but not enough to bring it up to a majority. The Senate is a bit different: 55% have law degrees. And of course not all people with law degrees ever practice law.
I would agree that there needs to be a massive overhaul of the law at both the state and federal levels (something like a Law Commission). But non-lawyers (or I should say non-experts) often do a terrible job of drafting laws. Removing lawyers from the law drafting and law reform process is not the answer.
posted by jedicus at 3:02 PM on August 19, 2011 [2 favorites]
Perhaps, but attorneys don't create disputes or choose to pursue them. Their clients do. There has to be some system to resolve them, and the issues involved are often complicated.
This is the weak rationale that the legal profession depends on to justify its existence. Yes, attorneys that dominate the very institutions that make law so complex, help their own. It's a scam that gets more and more complex, year by year. Their clients do? Their clients? Give me a break! American lawyers-turned-legislators and their lawyering staffs have enabled the rich in our country. That's right; it's skilled "gun-for-hire" attorneys who write legislation and law that's so complex and arcane that it takes one of their own to decipher meaning. We're screwed if this continues.
And, you say their "clients" hire legal staff to recommend ways to use the law to their advantage. It's actually built into the legal system - i.e. that the attorney has to look out for the best interest of her client. If a polluting corporation is that client, or a mobster - who cares? I have been inside large institutions at the highest levels, and have seen first hand how the scam works. Attorney is hired to find ways to squash the competition. Attorney is happy to do whatever it takes to fulfill that obligation. Gun for hire. Someone who knows "the language"
It makes me laugh when I hear about "corruption and bribes" in other nations, and how Americans get holier-than-thou about "how we don't do that". We DO do that; we do it by means of the law, written mostly by attorneys or ex-attorneys who populate our state, local, and national legislatures (and their lawyered-up staffs).
There is much more than simply complicated jargon standing in the way of laypeople being able to handle major litigation. If you have a concrete, workable alternative model to suggest, I'm sure a lot of people would be happy to hear it.
I suggested the solution, above. Right now, the legal profession has a stranglehold on the law. The Supreme Court is made up entirely of people who have learned how to translate and write the language we call "law". We don't need their language; they do. They need a complex, arcane system of grammar and meaning - and the more arcane and grammatically obtuse, the better (for them) - because that's what keeps bringing their fees in. They need their pals on the Hill to keep churning out more and more of this garbage, so that our society is required practically by default to need the services of attorneys.
We are literally being crushed by law. It was the "law" that made the financial crisis possible. Law that served those in power; those that had access to the financial and legal whores that wrote legislation (laws) so complex that very few people could understand what the long term implications were.
Our entire system - a system predicated on letting people known as lawyers write, deploy, and interpret our laws serves attorneys best, and not the citizens of this great nation that deserve better. Why should ANY law be written so that ANYONE with a 10th grade education doesn't understand it? Unless that law involves special knowledge about silicon innovation, nanotech, etc. etc. there should be nothing in the law that can't be understood by the average citizen. In the latter case, anyone who is involved in high tech in the specialties just mentioned should be able to easily decipher the meaning of the law. Why isn't this the case? It's the case because we have - societies at large have - let themselves get into a belief - an irrational belief - that we need to have laws made so complex that we need someone's help to understand them; to prosecute them' to interpret them; to even fucking read them to us in a way that helps us to understand what they mean! Is that a transparent society? It's not. It's a society built on special language - a language that is made intentionally complex in a way that serves the very profession that makes it up and interprets it.
My solution: simplify the language of law. What's so hard about that? Attorneys have to score WAY HIGH on their LSAT's to get into Harvard. LSAT's put a huge premium on one's ability to understand complex language. If one can do that, one can also, presumably, write simple language that any common citizen can understand.
As for training lawyers, why not go back to the legal clerk method. the law should NOT be considered an occupation where one can make a killing. It should be remunerated at a much lower rate. It WOULD be remunerated at a much lower rate if we had lawyers who write law that most simple folk could understand. the chances of this happening are near zero, because the law profession takes care of their own.
Why don't we see a hue and cry for this kind of simplification of the law? Because lawyers are too busy making a living as an end result of the confusion that results from trying to read language that other lawyers wrote - that's why.
posted by Vibrissae at 3:30 PM on August 19, 2011 [1 favorite]
This is the weak rationale that the legal profession depends on to justify its existence. Yes, attorneys that dominate the very institutions that make law so complex, help their own. It's a scam that gets more and more complex, year by year. Their clients do? Their clients? Give me a break! American lawyers-turned-legislators and their lawyering staffs have enabled the rich in our country. That's right; it's skilled "gun-for-hire" attorneys who write legislation and law that's so complex and arcane that it takes one of their own to decipher meaning. We're screwed if this continues.
And, you say their "clients" hire legal staff to recommend ways to use the law to their advantage. It's actually built into the legal system - i.e. that the attorney has to look out for the best interest of her client. If a polluting corporation is that client, or a mobster - who cares? I have been inside large institutions at the highest levels, and have seen first hand how the scam works. Attorney is hired to find ways to squash the competition. Attorney is happy to do whatever it takes to fulfill that obligation. Gun for hire. Someone who knows "the language"
It makes me laugh when I hear about "corruption and bribes" in other nations, and how Americans get holier-than-thou about "how we don't do that". We DO do that; we do it by means of the law, written mostly by attorneys or ex-attorneys who populate our state, local, and national legislatures (and their lawyered-up staffs).
There is much more than simply complicated jargon standing in the way of laypeople being able to handle major litigation. If you have a concrete, workable alternative model to suggest, I'm sure a lot of people would be happy to hear it.
I suggested the solution, above. Right now, the legal profession has a stranglehold on the law. The Supreme Court is made up entirely of people who have learned how to translate and write the language we call "law". We don't need their language; they do. They need a complex, arcane system of grammar and meaning - and the more arcane and grammatically obtuse, the better (for them) - because that's what keeps bringing their fees in. They need their pals on the Hill to keep churning out more and more of this garbage, so that our society is required practically by default to need the services of attorneys.
We are literally being crushed by law. It was the "law" that made the financial crisis possible. Law that served those in power; those that had access to the financial and legal whores that wrote legislation (laws) so complex that very few people could understand what the long term implications were.
Our entire system - a system predicated on letting people known as lawyers write, deploy, and interpret our laws serves attorneys best, and not the citizens of this great nation that deserve better. Why should ANY law be written so that ANYONE with a 10th grade education doesn't understand it? Unless that law involves special knowledge about silicon innovation, nanotech, etc. etc. there should be nothing in the law that can't be understood by the average citizen. In the latter case, anyone who is involved in high tech in the specialties just mentioned should be able to easily decipher the meaning of the law. Why isn't this the case? It's the case because we have - societies at large have - let themselves get into a belief - an irrational belief - that we need to have laws made so complex that we need someone's help to understand them; to prosecute them' to interpret them; to even fucking read them to us in a way that helps us to understand what they mean! Is that a transparent society? It's not. It's a society built on special language - a language that is made intentionally complex in a way that serves the very profession that makes it up and interprets it.
My solution: simplify the language of law. What's so hard about that? Attorneys have to score WAY HIGH on their LSAT's to get into Harvard. LSAT's put a huge premium on one's ability to understand complex language. If one can do that, one can also, presumably, write simple language that any common citizen can understand.
As for training lawyers, why not go back to the legal clerk method. the law should NOT be considered an occupation where one can make a killing. It should be remunerated at a much lower rate. It WOULD be remunerated at a much lower rate if we had lawyers who write law that most simple folk could understand. the chances of this happening are near zero, because the law profession takes care of their own.
Why don't we see a hue and cry for this kind of simplification of the law? Because lawyers are too busy making a living as an end result of the confusion that results from trying to read language that other lawyers wrote - that's why.
posted by Vibrissae at 3:30 PM on August 19, 2011 [1 favorite]
Tort reform benefits corporations and tortfeasors at the expense of everyone else. The problem is that the defense bar doesn't settle fast.
If and when we as a socitey move past stage one thinking, we'll recognize that corporations are amoral entities who will pass on the costs of frivolous lawsuits to their customers, aka. "everyone else."
Properly applied tort reform won't get in the way of justice. Of course, if your idea of "justice" involves hopes and dreams of winning the litigation lottery, it may.
It will have a very negative effect on slip and fall lawyers and other high earning portions of the law profession.
posted by cleancut at 3:31 PM on August 19, 2011
If and when we as a socitey move past stage one thinking, we'll recognize that corporations are amoral entities who will pass on the costs of frivolous lawsuits to their customers, aka. "everyone else."
Properly applied tort reform won't get in the way of justice. Of course, if your idea of "justice" involves hopes and dreams of winning the litigation lottery, it may.
It will have a very negative effect on slip and fall lawyers and other high earning portions of the law profession.
posted by cleancut at 3:31 PM on August 19, 2011
My solution: simplify the language of law.
I'm sorry but I simply don't see this as a meaningful fix. It really is not about the language; it's about structural complexity. Your average person really could read any given part of your average statute, so long as it isn't about something technical, and understand it. It's the knowledge of the way these provisions interact (and, yes, how to exploit them to serve your client's best interests) that is difficult. Any solution to that problem, if it is in fact a problem, has to involve identifying specific laws that are extraneous or unnecessarily complex, and articulating both why and how they can be simplified.
We live in a complicated world and the law we have, for better for worse, is the consequence of human beings trying their best to order it. (And, yes, to cater to the interests of their constituents, though not, in my opinion, to the untoward extent that many believe.)
posted by dixiecupdrinking at 3:44 PM on August 19, 2011 [1 favorite]
I'm sorry but I simply don't see this as a meaningful fix. It really is not about the language; it's about structural complexity. Your average person really could read any given part of your average statute, so long as it isn't about something technical, and understand it. It's the knowledge of the way these provisions interact (and, yes, how to exploit them to serve your client's best interests) that is difficult. Any solution to that problem, if it is in fact a problem, has to involve identifying specific laws that are extraneous or unnecessarily complex, and articulating both why and how they can be simplified.
We live in a complicated world and the law we have, for better for worse, is the consequence of human beings trying their best to order it. (And, yes, to cater to the interests of their constituents, though not, in my opinion, to the untoward extent that many believe.)
posted by dixiecupdrinking at 3:44 PM on August 19, 2011 [1 favorite]
Only 38% of Representatives have law degrees. There might be a few non-degree holding attorneys in there, but not enough to bring it up to a majority. The Senate is a bit different: 55% have law degrees. And of course not all people with law degrees ever practice law.
this info is 4 years old:
Out of the 540 current members of Congress (including 5 non-voting members), 236 hold law degrees (58 Senators and 178 Representatives). That makes 44%. There exist some efforts to change this. And, it doesn't matter whether they practice law; their way of framing our civil society is learned from their legal mentors, and involves the use of arcane and complex language that is constantly ramped up to be more and more arcane and clever so that it takes a freaking legal genius to figure out what the intention and meaning of the law is. In a Democratic society that requires transparency for long-term survival that is just wrong.
Society needs laws; societies exist via civility and guarantees for personal safety, or they die. That said, societies do not require the kind of arcane legal language that Americans suffer under. It's a disgrace and insult to American citizens that they should have to hire an attorney to get them through a divorce settlement, or through probate, or through any one of a number of basic life events, just because they don't understand what their rights are.
The legal profession is right up there with the financial profession and the insurance profession as large parasites in our culture. They exist because they hold the reins.
We do our selves no favors as a nation to let the legal profession continue its parasitical ways. I don't have all the answers, but something needs to be done. When poor people can't access the law, or attorneys are helping to create laws so complex that they require another attorney to interpret them, something is wrong.
The law is intended to protect, but it is also used by those who are nefarious in their intentions, to harm. If the language of law was transparent, and more clearly and easily able to be understood, we would have less abuse of the law, and the parasite attorneys who profit from "protecting" us from their own kind. American are too often a victim of the very thing that is supposed to protect them, the law; they become victims because of the way that law is written, and interpreted, largely by lawyers. It's a large and tragic irony.
posted by Vibrissae at 3:49 PM on August 19, 2011
this info is 4 years old:
Out of the 540 current members of Congress (including 5 non-voting members), 236 hold law degrees (58 Senators and 178 Representatives). That makes 44%. There exist some efforts to change this. And, it doesn't matter whether they practice law; their way of framing our civil society is learned from their legal mentors, and involves the use of arcane and complex language that is constantly ramped up to be more and more arcane and clever so that it takes a freaking legal genius to figure out what the intention and meaning of the law is. In a Democratic society that requires transparency for long-term survival that is just wrong.
Society needs laws; societies exist via civility and guarantees for personal safety, or they die. That said, societies do not require the kind of arcane legal language that Americans suffer under. It's a disgrace and insult to American citizens that they should have to hire an attorney to get them through a divorce settlement, or through probate, or through any one of a number of basic life events, just because they don't understand what their rights are.
The legal profession is right up there with the financial profession and the insurance profession as large parasites in our culture. They exist because they hold the reins.
We do our selves no favors as a nation to let the legal profession continue its parasitical ways. I don't have all the answers, but something needs to be done. When poor people can't access the law, or attorneys are helping to create laws so complex that they require another attorney to interpret them, something is wrong.
The law is intended to protect, but it is also used by those who are nefarious in their intentions, to harm. If the language of law was transparent, and more clearly and easily able to be understood, we would have less abuse of the law, and the parasite attorneys who profit from "protecting" us from their own kind. American are too often a victim of the very thing that is supposed to protect them, the law; they become victims because of the way that law is written, and interpreted, largely by lawyers. It's a large and tragic irony.
posted by Vibrissae at 3:49 PM on August 19, 2011
It will have a very negative effect on slip and fall lawyers and other high earning portions of the law profession.
A description of slip and fall lawyers as "high earning members of the legal profession" is a good sign that you don't have a clue what you're talking about.
Big corporations and other groups/people with money will ALWAYS have enough lawyers. Period. The only thing that reducing the number of lawyers will do will reduce the number of lawyers that individuals without money have. The people who sell you on "tort reform" and tell you that lawyers are parasites are fine with this; they know they'll have lawyers when they need them, and it's easier for them if you don't.
posted by Bulgaroktonos at 3:56 PM on August 19, 2011 [3 favorites]
A description of slip and fall lawyers as "high earning members of the legal profession" is a good sign that you don't have a clue what you're talking about.
Big corporations and other groups/people with money will ALWAYS have enough lawyers. Period. The only thing that reducing the number of lawyers will do will reduce the number of lawyers that individuals without money have. The people who sell you on "tort reform" and tell you that lawyers are parasites are fine with this; they know they'll have lawyers when they need them, and it's easier for them if you don't.
posted by Bulgaroktonos at 3:56 PM on August 19, 2011 [3 favorites]
It really is not about the language; it's about structural complexity. Your average person really could read any given part of your average statute, so long as it isn't about something technical, and understand it. It's the knowledge of the way these provisions interact (and, yes, how to exploit them to serve your client's best interests) that is difficult. Any solution to that problem, if it is in fact a problem, has to involve identifying specific laws that are extraneous or unnecessarily complex, and articulating both why and how they can be simplified.
That begs the larger question about why this isn't being done. Why do we see no LARGE effort brought forward fro law schools to solve that problem? Why? Because it doesn't serve their selfish interests; it's also because "lawyer language" (the so-called 'law') is created by lawyers, trained to write that way. The entire "legal apple" is rotten to the core. Sure, there are good lawyers out there trying to do good, but they are themselves trapped in a system that requires their services because it's not easy to understand the law. Also, I challenge you to read something as simple as the small print that the other parasite segment of our society - the financial sector - prints on your initial credit card agreement. Essentially, one signs one's rights away when agreeing to the tenets of what is written on those forms, in language created by attorneys.
There should be no question about something as straightforward as a patent. But look at the mess we're in with IP law. It's outrageous, and parasitical attorneys feed on it. That's just one example. Is that the US Patent Office fault? No, it isn't. It's the fault of inconsistencies and incongruities in the law that was written by attorneys, in a language that's so difficult to decipher that it takes a specialist to get to page 2 - not to mention the technical jargon present.
posted by Vibrissae at 3:57 PM on August 19, 2011
That begs the larger question about why this isn't being done. Why do we see no LARGE effort brought forward fro law schools to solve that problem? Why? Because it doesn't serve their selfish interests; it's also because "lawyer language" (the so-called 'law') is created by lawyers, trained to write that way. The entire "legal apple" is rotten to the core. Sure, there are good lawyers out there trying to do good, but they are themselves trapped in a system that requires their services because it's not easy to understand the law. Also, I challenge you to read something as simple as the small print that the other parasite segment of our society - the financial sector - prints on your initial credit card agreement. Essentially, one signs one's rights away when agreeing to the tenets of what is written on those forms, in language created by attorneys.
There should be no question about something as straightforward as a patent. But look at the mess we're in with IP law. It's outrageous, and parasitical attorneys feed on it. That's just one example. Is that the US Patent Office fault? No, it isn't. It's the fault of inconsistencies and incongruities in the law that was written by attorneys, in a language that's so difficult to decipher that it takes a specialist to get to page 2 - not to mention the technical jargon present.
posted by Vibrissae at 3:57 PM on August 19, 2011
The legal problems most people encounter really aren't about language Vibrissae. Take a person who's seeking child custody. In all likelihood, the statute is pretty straightforward. It probably says "best interests of the child" and lists a some things to consider when making that determination. What you get out of a lawyer is a person who can 1) independent judgment about what arguments to make and 2) someone who day to day experience making those arguments and so can make them in the most effective way. No matter how clear the statute is, people will still need those things.
posted by Bulgaroktonos at 4:03 PM on August 19, 2011
posted by Bulgaroktonos at 4:03 PM on August 19, 2011
The only way this will work is if the new frims undercut the established ones and drop the cost of legal services generally. Lawyers incomes drop as a result. What am I missing? Is there some structural problem in the legal employment marketplace?
Yes. The biggest issue is that, for those who can afford to hire attorneys on a non-contingency fee basis (think upper middle class or higher for individuals, and all businesses), undercutting price doesn't go very far. It has to do with the fact that, if you're a small business owner, getting sued could be one of the most important things that happens to your business. Much like a person getting cancer. You want the best help, not someone who is cutting their rates to attract more business.
Vibrissae, i think your proposed solution, simplifying the law, is nearly impossible. Sure, we can strive to draft laws that are easier to understand, but they fit into a larger, complicated rubric. Tossing out the entire United States Code, much less all of the subsidiary regulations and all of the state laws, and redrafting everything, would lead to mayhem.
Here, in this example, we have law school professors who are already charging 3x the going rate for tuition at most other professional schools wanting to start their own law firms?
Cite for that salary figure, please.
Mostly, that's what attorneys are, they're simply "legal translators" of the very language we need to keep our society civil - a language that attorneys and their kind are responsible for creating.
I'm biased, but I think this is not true. Most people can read the criminal codes of their respective states, and can figure out what acts fit certain crimes. However, they still don't know anything about what offers the local prosecutor's office gives, how the pretrial procedures usually go, what arguments tend to persuade a particular judge, or what consitutional defincies the arrest or interrogation may have. The ability to read a law is a far cry from the ability to serve as a competent attorney, even in the simpilest of cases.
posted by craven_morhead at 4:07 PM on August 19, 2011
Yes. The biggest issue is that, for those who can afford to hire attorneys on a non-contingency fee basis (think upper middle class or higher for individuals, and all businesses), undercutting price doesn't go very far. It has to do with the fact that, if you're a small business owner, getting sued could be one of the most important things that happens to your business. Much like a person getting cancer. You want the best help, not someone who is cutting their rates to attract more business.
Vibrissae, i think your proposed solution, simplifying the law, is nearly impossible. Sure, we can strive to draft laws that are easier to understand, but they fit into a larger, complicated rubric. Tossing out the entire United States Code, much less all of the subsidiary regulations and all of the state laws, and redrafting everything, would lead to mayhem.
Here, in this example, we have law school professors who are already charging 3x the going rate for tuition at most other professional schools wanting to start their own law firms?
Cite for that salary figure, please.
Mostly, that's what attorneys are, they're simply "legal translators" of the very language we need to keep our society civil - a language that attorneys and their kind are responsible for creating.
I'm biased, but I think this is not true. Most people can read the criminal codes of their respective states, and can figure out what acts fit certain crimes. However, they still don't know anything about what offers the local prosecutor's office gives, how the pretrial procedures usually go, what arguments tend to persuade a particular judge, or what consitutional defincies the arrest or interrogation may have. The ability to read a law is a far cry from the ability to serve as a competent attorney, even in the simpilest of cases.
posted by craven_morhead at 4:07 PM on August 19, 2011
Big corporations and other groups/people with money will ALWAYS have enough lawyers. Period. The only thing that reducing the number of lawyers will do will reduce the number of lawyers that individuals without money have. The people who sell you on "tort reform" and tell you that lawyers are parasites are fine with this; they know they'll have lawyers when they need them, and it's easier for them if you don't.
The question you need to ask yourself is why do we need lawyers, in the first place? Everything argued here bags that question. Legal language, and the complications thereof - including the manipulation of that legal language - is at the bottom of everything you claim, above.
As for the poor needing legal help, and those arguing for shrinkage in attorneys arguing against the interest of the poor? You can't be serious? Your assumption rests within the current structures, complications, and manipulations of the law, performed by lawyers. What you're saying is what I'm saying - i.e. we need lawyers because there are lawyers. What we should all be working and arguing for is a legal system that is so transparent in language, meaning, and interpretation, that the only thing that should be necessary (with some exceptions) would be the judge and jury. Judges, who are themselves lawyers, often legislate from the bench.
posted by Vibrissae at 4:13 PM on August 19, 2011 [1 favorite]
The question you need to ask yourself is why do we need lawyers, in the first place? Everything argued here bags that question. Legal language, and the complications thereof - including the manipulation of that legal language - is at the bottom of everything you claim, above.
As for the poor needing legal help, and those arguing for shrinkage in attorneys arguing against the interest of the poor? You can't be serious? Your assumption rests within the current structures, complications, and manipulations of the law, performed by lawyers. What you're saying is what I'm saying - i.e. we need lawyers because there are lawyers. What we should all be working and arguing for is a legal system that is so transparent in language, meaning, and interpretation, that the only thing that should be necessary (with some exceptions) would be the judge and jury. Judges, who are themselves lawyers, often legislate from the bench.
posted by Vibrissae at 4:13 PM on August 19, 2011 [1 favorite]
Here, in this example, we have law school professors who are already charging 3x the going rate for tuition at most other professional schools wanting to start their own law firms?
Cite for that salary figure, please.
It's not a salary figure, it has to do with tuition rates at law schools - tuition rates that keep climbing in spite of the decrease legal jobs caused by the current downturn.
" During this recession, law school tuition has continued to go up. Think about that for a second: in the middle of a global recession, a global credit crunch, law schools are charging more money — forcing students to take out on more debt at the very same time when the legal jobs needed to pay off those debts are disappearing. "
Most people can read the criminal codes of their respective states, and can figure out what acts fit certain crimes. However, they still don't know anything about what offers the local prosecutor's office gives, how the pretrial procedures usually go, what arguments tend to persuade a particular judge, or what consitutional defincies the arrest or interrogation may have. The ability to read a law is a far cry from the ability to serve as a competent attorney, even in the simpilest of cases.
First, we disagree about whether most people can read and *understand* criminal or civil code. Why do people go to see an attorney, in the first place? It's because the law is often very unclear in its meaning, or is so deep and arcane and complex that it takes an expert to ferret out meaning sufficient to give ones client an advantage. That is not transparent; it serves attorneys more than it serves the citizen - especially since the citizen has to PAY to get access to meaning, and advantage. The system is rotten to the core. It's a system that serves those who can afford to pay for interpretations that bring advantage.
I may be able to read and understand probate law, but I dare not enter a probate process without legal aid - I might get screwed by the other side.
The point I'm trying to get at is that the legal process is arcane; it's *too arcane* (including the language) for the average person to understand, or enter into. There's nothing wrong with complexity; one cannot legislate away complexity, but there's no excuse for lack of clarity.
Most Americans do not understand how very little they know about the law, and how what they *think* is a clear understanding can be twisted in a way that it hurts their own interests, unless they can find a lawyer to help them. How did this ridiculous state affairs come to be? It came to be through the arcane nature of legal law and legal process that was for the most part created by - and is currently sustained by - the legal profession.
Priests are not necessary for the full functioning of society. Lawyers shouldn't be, either. Law is written like the Bible - too open to interpretation. It's written by legislators who are most often attorneys. I don't have a cite for how many Congressional staffers are attorneys, but I'll bet they're in the large majority on the Kill. So, who created the King James Bible, and who approved its changes? the Priests!
We need to get lawyers away from writing law. We need to retrain them or establish some process to rewrite existing law - piece by piece - so that anyone can understand it. Will that happen? It's doubtful, because those who hold the reins to the process are largely from the legal profession.
Bottom line: more transparent code; less reliance on attorneys; less manipulation of the law made possible by the creation of transparent and clear law, not subject to manipulation.
Attorneys, financiers, and insurers - three classes of parasite that we could largely do without. Either that, or they need to find large ways to serve society, instead of sucking us dry. Why should anyone pay more for a divorce than they do open heart surgery? Think about it.
posted by Vibrissae at 4:38 PM on August 19, 2011 [1 favorite]
Cite for that salary figure, please.
It's not a salary figure, it has to do with tuition rates at law schools - tuition rates that keep climbing in spite of the decrease legal jobs caused by the current downturn.
" During this recession, law school tuition has continued to go up. Think about that for a second: in the middle of a global recession, a global credit crunch, law schools are charging more money — forcing students to take out on more debt at the very same time when the legal jobs needed to pay off those debts are disappearing. "
Most people can read the criminal codes of their respective states, and can figure out what acts fit certain crimes. However, they still don't know anything about what offers the local prosecutor's office gives, how the pretrial procedures usually go, what arguments tend to persuade a particular judge, or what consitutional defincies the arrest or interrogation may have. The ability to read a law is a far cry from the ability to serve as a competent attorney, even in the simpilest of cases.
First, we disagree about whether most people can read and *understand* criminal or civil code. Why do people go to see an attorney, in the first place? It's because the law is often very unclear in its meaning, or is so deep and arcane and complex that it takes an expert to ferret out meaning sufficient to give ones client an advantage. That is not transparent; it serves attorneys more than it serves the citizen - especially since the citizen has to PAY to get access to meaning, and advantage. The system is rotten to the core. It's a system that serves those who can afford to pay for interpretations that bring advantage.
I may be able to read and understand probate law, but I dare not enter a probate process without legal aid - I might get screwed by the other side.
The point I'm trying to get at is that the legal process is arcane; it's *too arcane* (including the language) for the average person to understand, or enter into. There's nothing wrong with complexity; one cannot legislate away complexity, but there's no excuse for lack of clarity.
Most Americans do not understand how very little they know about the law, and how what they *think* is a clear understanding can be twisted in a way that it hurts their own interests, unless they can find a lawyer to help them. How did this ridiculous state affairs come to be? It came to be through the arcane nature of legal law and legal process that was for the most part created by - and is currently sustained by - the legal profession.
Priests are not necessary for the full functioning of society. Lawyers shouldn't be, either. Law is written like the Bible - too open to interpretation. It's written by legislators who are most often attorneys. I don't have a cite for how many Congressional staffers are attorneys, but I'll bet they're in the large majority on the Kill. So, who created the King James Bible, and who approved its changes? the Priests!
We need to get lawyers away from writing law. We need to retrain them or establish some process to rewrite existing law - piece by piece - so that anyone can understand it. Will that happen? It's doubtful, because those who hold the reins to the process are largely from the legal profession.
Bottom line: more transparent code; less reliance on attorneys; less manipulation of the law made possible by the creation of transparent and clear law, not subject to manipulation.
Attorneys, financiers, and insurers - three classes of parasite that we could largely do without. Either that, or they need to find large ways to serve society, instead of sucking us dry. Why should anyone pay more for a divorce than they do open heart surgery? Think about it.
posted by Vibrissae at 4:38 PM on August 19, 2011 [1 favorite]
Why do people go to see an attorney, in the first place? It's because the law is often very unclear in its meaning, or is so deep and arcane and complex that it takes an expert to ferret out meaning sufficient to give ones client an advantage
Actually... it's quite the opposite. The reason most people have trouble reading and understanding legal documents is not because they're unclear, but because they're way more precisely written than people are used to dealing with. Every day speech is ridiculously ambiguous if you subject it to any serious level of rigor. Ambiguity means risk and uncertain outcomes, and people don't like that. The solution is to draft documents as carefully and exactly as possible, even if that means that they're hard to understand. Again, the reason is not because they're obfuscated, but because most people don't know logic from a hole in the ground. The code is transparent, and making it "easier to read" would only have the effect of making it a lot easier to exploit.
More than that, litigation is not just a "he said, she said, what do you think" sort of deal. Legal argumentation is not ranting on the internet, and that's a good thing. In normal, informal conversation, people can say just about whatever they want, regardless of its relevance or credibility, and there's no real way of picking a winner. This works just fine for interpersonal interaction but would be impossible to resolve any disputes that way. But most people, yourself included it would seem, approach things as just knowing what they know and damned with the Rules of Evidence. They exist for a reason, you know, and it's to ensure that documents are authenticated, testimony is backed by personal knowledge, and information is relevant.
Abiding by the Rules of Evidence is hard, even for attorneys. I'm assisting with a motion to strike where we're looking to exclude about three dozen "exhibits" that plaintiffs' counsel basically pulled out of his ass. Seriously now, the guy printed off stock photos from my client's website and tried to submit it as evidence of how a particular kind of inspection is performed. Even the client doesn't know what the hell those photos are from. The web designer just picked a few random photos of guys in construction gear working on a utility pole. But if we were to go with your way of thinking, there'd be no problem with that, because hey, why bother with all these formalities? Law should be simple, right?
No. No, it shouldn't. Because life is complicated, and the law needs to be complicated to deal with it adequately. You don't have to like it, but sticking your fingers in your ears and insisting that we should act as if the world is as you would like it to be is just silly.
posted by valkyryn at 4:51 PM on August 19, 2011 [10 favorites]
Actually... it's quite the opposite. The reason most people have trouble reading and understanding legal documents is not because they're unclear, but because they're way more precisely written than people are used to dealing with. Every day speech is ridiculously ambiguous if you subject it to any serious level of rigor. Ambiguity means risk and uncertain outcomes, and people don't like that. The solution is to draft documents as carefully and exactly as possible, even if that means that they're hard to understand. Again, the reason is not because they're obfuscated, but because most people don't know logic from a hole in the ground. The code is transparent, and making it "easier to read" would only have the effect of making it a lot easier to exploit.
More than that, litigation is not just a "he said, she said, what do you think" sort of deal. Legal argumentation is not ranting on the internet, and that's a good thing. In normal, informal conversation, people can say just about whatever they want, regardless of its relevance or credibility, and there's no real way of picking a winner. This works just fine for interpersonal interaction but would be impossible to resolve any disputes that way. But most people, yourself included it would seem, approach things as just knowing what they know and damned with the Rules of Evidence. They exist for a reason, you know, and it's to ensure that documents are authenticated, testimony is backed by personal knowledge, and information is relevant.
Abiding by the Rules of Evidence is hard, even for attorneys. I'm assisting with a motion to strike where we're looking to exclude about three dozen "exhibits" that plaintiffs' counsel basically pulled out of his ass. Seriously now, the guy printed off stock photos from my client's website and tried to submit it as evidence of how a particular kind of inspection is performed. Even the client doesn't know what the hell those photos are from. The web designer just picked a few random photos of guys in construction gear working on a utility pole. But if we were to go with your way of thinking, there'd be no problem with that, because hey, why bother with all these formalities? Law should be simple, right?
No. No, it shouldn't. Because life is complicated, and the law needs to be complicated to deal with it adequately. You don't have to like it, but sticking your fingers in your ears and insisting that we should act as if the world is as you would like it to be is just silly.
posted by valkyryn at 4:51 PM on August 19, 2011 [10 favorites]
As for the poor needing legal help, and those arguing for shrinkage in attorneys arguing against the interest of the poor? You can't be serious? Your assumption rests within the current structures, complications, and manipulations of the law, performed by lawyers. What you're saying is what I'm saying - i.e. we need lawyers because there are lawyers.
Yes, if you argue for there being fewer lawyers, you are arguing against the interests of the poor. Period. You might believe something else, but in actuality, the people who have convinced you of this are the monied interests who have convinced you of this as part of a campaign to favor themselves at the expense of the poor.
You justify your position based on some generic complaint about the "complicated language" of the law, which makes me think either 1) You don't know much about the day to day activities of lawyers or 2) You've time warped here from 18th Century. What I do as a lawyer has little to do with using some arcane "legalese," it has a lot more to do with doing taking the time and doing the research to figure out what the law and then applying it to the case at hand. Finding that law is complicated not because the law is unclear, but because each case is different. Take a person of average intelligence, and they could probably read a bit of case law or a statute and tell you what the law is; what would be much, much harder for them to do is look at five different pieces of case law, each of which address an issue that is 50% like theirs and make a cogent argument as to how the various opinions interact.
You also speak as if you're entirely ignorant of the existence of the common law; it's not all about simplifying "the code" because the code is only part of the law. There are good reasons for this, binding precedent helps make the law clearer since it means that each judge isn't reinventing the wheel, but it also makes finding the law a time consuming endeavor since it requires research time and skills. Having specialists do that work makes sense.
The other aspect of lawyering, that I mentioned above, is that I serve as a disinterested counselor who helps my clients make the best possible decisions. In a world without lawyers, every criminal defendant has to represent themselves, which means a lot of hotheaded people making a lot of rash decisions instead of looking at their situation objectively and considering the consequences.
That also brings me to my last point: in a world without lawyers, people without education, less intelligent people, and people who communicate more poorly will be placed at a huge disadvantage. If you'd like to compound the problems of classism and racism, I can't think a better first step than getting rid of the lawyers.
posted by Bulgaroktonos at 4:54 PM on August 19, 2011 [5 favorites]
Yes, if you argue for there being fewer lawyers, you are arguing against the interests of the poor. Period. You might believe something else, but in actuality, the people who have convinced you of this are the monied interests who have convinced you of this as part of a campaign to favor themselves at the expense of the poor.
You justify your position based on some generic complaint about the "complicated language" of the law, which makes me think either 1) You don't know much about the day to day activities of lawyers or 2) You've time warped here from 18th Century. What I do as a lawyer has little to do with using some arcane "legalese," it has a lot more to do with doing taking the time and doing the research to figure out what the law and then applying it to the case at hand. Finding that law is complicated not because the law is unclear, but because each case is different. Take a person of average intelligence, and they could probably read a bit of case law or a statute and tell you what the law is; what would be much, much harder for them to do is look at five different pieces of case law, each of which address an issue that is 50% like theirs and make a cogent argument as to how the various opinions interact.
You also speak as if you're entirely ignorant of the existence of the common law; it's not all about simplifying "the code" because the code is only part of the law. There are good reasons for this, binding precedent helps make the law clearer since it means that each judge isn't reinventing the wheel, but it also makes finding the law a time consuming endeavor since it requires research time and skills. Having specialists do that work makes sense.
The other aspect of lawyering, that I mentioned above, is that I serve as a disinterested counselor who helps my clients make the best possible decisions. In a world without lawyers, every criminal defendant has to represent themselves, which means a lot of hotheaded people making a lot of rash decisions instead of looking at their situation objectively and considering the consequences.
That also brings me to my last point: in a world without lawyers, people without education, less intelligent people, and people who communicate more poorly will be placed at a huge disadvantage. If you'd like to compound the problems of classism and racism, I can't think a better first step than getting rid of the lawyers.
posted by Bulgaroktonos at 4:54 PM on August 19, 2011 [5 favorites]
In a world without lawyers, every criminal defendant has to represent themselves, which means a lot of hotheaded people making a lot of rash decisions instead of looking at their situation objectively and considering the consequences.
Also, in a world without lawyers, no tort case would ever settle, because plaintiffs are all convinced that the other guy was totally at fault and that their claim is worth a million billion dollars, wherein realty, there's usually some question as to either who really is liable and the real value of the claim. Frequently both.
Remember, when you see the media talking about a lawsuit, that means it's news, i.e. there's something really unusual going on. The cases that get covered in the media are not at all representative of what goes down in county courthouses most of the time. For every case where the jury awards millions in damages there's another case resulting in a defense verdict and a hundred cases that settle before trial in a relatively timely manner for less than $100,000.
posted by valkyryn at 5:13 PM on August 19, 2011 [2 favorites]
Also, in a world without lawyers, no tort case would ever settle, because plaintiffs are all convinced that the other guy was totally at fault and that their claim is worth a million billion dollars, wherein realty, there's usually some question as to either who really is liable and the real value of the claim. Frequently both.
Remember, when you see the media talking about a lawsuit, that means it's news, i.e. there's something really unusual going on. The cases that get covered in the media are not at all representative of what goes down in county courthouses most of the time. For every case where the jury awards millions in damages there's another case resulting in a defense verdict and a hundred cases that settle before trial in a relatively timely manner for less than $100,000.
posted by valkyryn at 5:13 PM on August 19, 2011 [2 favorites]
Law firms run by a bunch of legal scholars most of whom haven't worked in private practice for more than 2-3 years (and most of those years probably doing nothing more than basically busywork as an entry-level associate at a BIGLAW firm) before running off to academia? This should certainly end well.
posted by gyc at 5:56 PM on August 19, 2011
posted by gyc at 5:56 PM on August 19, 2011
Why do people go to see an attorney, in the first place?
In thinking about it, I got that one wrong. People usually go to see an attorney because they screwed something up, usually something that if they had consulted an attorney in the first place would have been fine.
posted by valkyryn at 7:13 PM on August 19, 2011
In thinking about it, I got that one wrong. People usually go to see an attorney because they screwed something up, usually something that if they had consulted an attorney in the first place would have been fine.
posted by valkyryn at 7:13 PM on August 19, 2011
Law firms run by a bunch of legal scholars most of whom haven't worked in private practice for more than 2-3 years (and most of those years probably doing nothing more than basically busywork as an entry-level associate at a BIGLAW firm) before running off to academia? This should certainly end well.
This is true of every law professor I personally know--it is not true of a single clinical law professor I have ever worked with.
posted by crush-onastick at 7:43 PM on August 19, 2011
This is true of every law professor I personally know--it is not true of a single clinical law professor I have ever worked with.
posted by crush-onastick at 7:43 PM on August 19, 2011
"Actually... it's quite the opposite. The reason most people have trouble reading and understanding legal documents is not because they're unclear, but because they're way more precisely written than people are used to dealing with."
This is one of the most perfect examples of confirmation bias that I've ever seen. Bravo!
If you mean by "precise", the inclusion of and/or teasing out and parsing every possible meaning or intention or variable that one can conjur, then we agree. If you mean precise in a way that makes the law transparently clear, then we disagree. the bottom line here is that attorneys who have been trained to look at language and problems in the way that they do, simply perpetuate the same when they are put in positions of legislative power, or positions of advisement to legislative power. So, we end up with complex mumbo-jumbo that we end up having to pay lawyers to interpret, defend for-and-against, and so on.
The big disadvantage here is that I'm not an attorney, so any attorney can "show me" why the law is necessary relative to the world that s/he participates in - relative to the legal frameworks that they participate in. It's like saying we need priests because we have religion. Where did religion come from in the first place?
Attorneys - and society at large - are so bound up in the language game of law that they don't see a way out. Our culture at large is so bound up in the way law is deployed, we've crippled ourselves. Wittgenstein would have had a blast with the Law, if he had the time and inclination.
in a world without lawyers, no tort case would ever settle, because plaintiffs are all convinced that the other guy was totally at fault and that their claim is worth a million billion dollars, wherein realty, there's usually some question as to either who really is liable and the real value of the claim.
Let the judge decide! If I'm suing someone for fraud - assuming the other side doesn't have a high-priced attorney - why shouldn't the plaintiff and I be able to bring the evidence and argue our respective cases?
Case in point: tenant/landlord law: why is it that I should need an attorney to throw out a really bad tenant, or defend myself against an abusive landlord? How "complicated" can the law be made to be? And, if it is made complicated, what end does that serve except to make a career for attorneys, who are by-and-large way overrepresented in law-making bodies. I know that correlation doesn't necessarily imply causation, but in this case it's hard to ignore what seems to be obvious - i.e. the law is made unnecessarily complex because lawyers want to be "precise" in their language; they want to prevent loopholes that people can wiggle out of, so we end up with more laws, and more lawyers, and more complex language. We become practically habituated to having attorneys solve our problems.
How is it that other cultures can get along quite well without as many lawyers as we have in the US? We have 10 times as many attorneys per capita than the Japanese. Yet, the Japanese still have redress in the courts.
Sorry, I don't buy the argument that we need attorneys to tease out meaning in order to protect clients because the law - law constructed and written primarily by attorneys - is complicated, too precise and pregnant with meaning, etc.
Paying someone who is nothing more than a specialist translator of an ancient script $500 an hour because I am a research historian is one thing. Paying an attorney $500 an hour because the law - written by attorneys, and largely debated and passed into law by attorneys - is almost literally of no use to me unless I pay an attorney to help me through the morass.
And yes, right now we need more attorneys to help the poor, because there are so many attorneys that are out there helping those of means to screw the poor over. Again, it starts with the language that attorneys have learned to model - a language that they use to create the means by which they make themselves necessary to the public that has been conditioned to take layering for granted. American citizens are stuck in the proverbial fly bottle, unable to find their way out, because we frame out culture within the law in a way that enables a special, self-interested class of people (i.e. attorneys) to continue to perpetuate a system that doesn't necessarily require their presence; rather, the system could do without them, if only they weren't a culturally embedded part of it.
Maybe someday we will see an end to this charade; in the meantime, I get freat pleasure watching Indian law firms that were originally used as outsource agents for paralegal work, coming back to the US to hire US attorneys to work for them at $80-$90K per year. I hope that trend continues. I hope other trends, like the use of online services drives the financial rewards of being an attorney to a level that never rewards an attorney more than any decent coder or nurse makes.
I know several attorneys - they live fat and happy off the sweat and blood of their clients. One is an IP attorney making $1500 an hour, who spends his time conjuring up hypothetical "what ifs" for his clients, in order to help them squash the competition. I know another guy who has a divorce mill going; the only thing he seems to care about is generating more hours so that he can open more offices and fill them with newly minted attorneys just out of law school. I know another guy who helps illegals maintain their rights - very laudable.
Law is fundamental to civilized culture - that's a no-brainer, but the way that America writes and deploys legal code, and the way that complexity and non-transparency is built in, is the direct result of attorney-related activities in the construction and deployment of law, requiring yet more attorneys to be present to gain meaningful access to the law. Something is wrong with that picture; it's a closed-circle of professional self-interest that is so deeply embedded in our culture that it goes unnoticed.
posted by Vibrissae at 7:55 PM on August 19, 2011 [1 favorite]
This is one of the most perfect examples of confirmation bias that I've ever seen. Bravo!
If you mean by "precise", the inclusion of and/or teasing out and parsing every possible meaning or intention or variable that one can conjur, then we agree. If you mean precise in a way that makes the law transparently clear, then we disagree. the bottom line here is that attorneys who have been trained to look at language and problems in the way that they do, simply perpetuate the same when they are put in positions of legislative power, or positions of advisement to legislative power. So, we end up with complex mumbo-jumbo that we end up having to pay lawyers to interpret, defend for-and-against, and so on.
The big disadvantage here is that I'm not an attorney, so any attorney can "show me" why the law is necessary relative to the world that s/he participates in - relative to the legal frameworks that they participate in. It's like saying we need priests because we have religion. Where did religion come from in the first place?
Attorneys - and society at large - are so bound up in the language game of law that they don't see a way out. Our culture at large is so bound up in the way law is deployed, we've crippled ourselves. Wittgenstein would have had a blast with the Law, if he had the time and inclination.
in a world without lawyers, no tort case would ever settle, because plaintiffs are all convinced that the other guy was totally at fault and that their claim is worth a million billion dollars, wherein realty, there's usually some question as to either who really is liable and the real value of the claim.
Let the judge decide! If I'm suing someone for fraud - assuming the other side doesn't have a high-priced attorney - why shouldn't the plaintiff and I be able to bring the evidence and argue our respective cases?
Case in point: tenant/landlord law: why is it that I should need an attorney to throw out a really bad tenant, or defend myself against an abusive landlord? How "complicated" can the law be made to be? And, if it is made complicated, what end does that serve except to make a career for attorneys, who are by-and-large way overrepresented in law-making bodies. I know that correlation doesn't necessarily imply causation, but in this case it's hard to ignore what seems to be obvious - i.e. the law is made unnecessarily complex because lawyers want to be "precise" in their language; they want to prevent loopholes that people can wiggle out of, so we end up with more laws, and more lawyers, and more complex language. We become practically habituated to having attorneys solve our problems.
How is it that other cultures can get along quite well without as many lawyers as we have in the US? We have 10 times as many attorneys per capita than the Japanese. Yet, the Japanese still have redress in the courts.
Sorry, I don't buy the argument that we need attorneys to tease out meaning in order to protect clients because the law - law constructed and written primarily by attorneys - is complicated, too precise and pregnant with meaning, etc.
Paying someone who is nothing more than a specialist translator of an ancient script $500 an hour because I am a research historian is one thing. Paying an attorney $500 an hour because the law - written by attorneys, and largely debated and passed into law by attorneys - is almost literally of no use to me unless I pay an attorney to help me through the morass.
And yes, right now we need more attorneys to help the poor, because there are so many attorneys that are out there helping those of means to screw the poor over. Again, it starts with the language that attorneys have learned to model - a language that they use to create the means by which they make themselves necessary to the public that has been conditioned to take layering for granted. American citizens are stuck in the proverbial fly bottle, unable to find their way out, because we frame out culture within the law in a way that enables a special, self-interested class of people (i.e. attorneys) to continue to perpetuate a system that doesn't necessarily require their presence; rather, the system could do without them, if only they weren't a culturally embedded part of it.
Maybe someday we will see an end to this charade; in the meantime, I get freat pleasure watching Indian law firms that were originally used as outsource agents for paralegal work, coming back to the US to hire US attorneys to work for them at $80-$90K per year. I hope that trend continues. I hope other trends, like the use of online services drives the financial rewards of being an attorney to a level that never rewards an attorney more than any decent coder or nurse makes.
I know several attorneys - they live fat and happy off the sweat and blood of their clients. One is an IP attorney making $1500 an hour, who spends his time conjuring up hypothetical "what ifs" for his clients, in order to help them squash the competition. I know another guy who has a divorce mill going; the only thing he seems to care about is generating more hours so that he can open more offices and fill them with newly minted attorneys just out of law school. I know another guy who helps illegals maintain their rights - very laudable.
Law is fundamental to civilized culture - that's a no-brainer, but the way that America writes and deploys legal code, and the way that complexity and non-transparency is built in, is the direct result of attorney-related activities in the construction and deployment of law, requiring yet more attorneys to be present to gain meaningful access to the law. Something is wrong with that picture; it's a closed-circle of professional self-interest that is so deeply embedded in our culture that it goes unnoticed.
posted by Vibrissae at 7:55 PM on August 19, 2011 [1 favorite]
Vibrissae, I find your anti-lawyer rhetoric strangely strident. You say things like "because the law - law constructed and written primarily by attorneys - is complicated...."
Putting aside the fact that common law, practically by definition, has to be constructed by attorneys (i.e. judges, and to an extent those who argue before them), who do you think would be better suited to draft legislation? Do you not think there is a need to be specific in a statute that applies to potentially 300 million people, not to mention countless corporations and so on? Do you not see how a system based on "let's just write it in plain old English and everyone will agree on what it means" is completely unworkable? The whole purpose of passing legislation is generally to change something, and any time you change the status quo there are winners and losers, and the losers are certainly not going to be agreeing with the winners about the meaning of that law that just got passed. Then what? Where is your recourse? Two laypeople take each other to court and talk about who screwed over whom and how based on whatever facts they feel are pertinent and a judge – probably a lawyer, unless you're getting rid of them too – decides based on his or her personal mores who should win, because there is no basis in the language of the statute itself for deciding who is correct? How is this more civilized or less tyrannical? And why expect it to be less controversial? Everyone hates "activist judges" already, just imagine what it would be like if you neutered the main democratic check on judicial authority, namely the congressional ability to pass meaningful legislation with teeth.
People who draft statutes have to anticipate and address a lot of different contingencies, and the language has to be carefully picked to convey precisely what the intent and effect of the law is. What is so bad about all of this, and what exactly do you propose replacing it with?
And this paragraph...:
I know several attorneys - they live fat and happy off the sweat and blood of their clients. One is an IP attorney making $1500 an hour, who spends his time conjuring up hypothetical "what ifs" for his clients, in order to help them squash the competition. I know another guy who has a divorce mill going; the only thing he seems to care about is generating more hours so that he can open more offices and fill them with newly minted attorneys just out of law school. I know another guy who helps illegals maintain their rights - very laudable.
It sounds like your IP attorney (who I seriously doubt is personally making $1500 an hour in income) is providing a cost-justified service to his clients. I don't know why it should matter what the divorce lawyer's motives are; his clients need divorces and he is apparently good enough at it to open more offices. And if your comment regarding illegals is facetious, I don't even know what to say. None of this is actually a case against lawyers so much as a sneering and selective description of what they do.
posted by dixiecupdrinking at 8:53 PM on August 19, 2011 [3 favorites]
Putting aside the fact that common law, practically by definition, has to be constructed by attorneys (i.e. judges, and to an extent those who argue before them), who do you think would be better suited to draft legislation? Do you not think there is a need to be specific in a statute that applies to potentially 300 million people, not to mention countless corporations and so on? Do you not see how a system based on "let's just write it in plain old English and everyone will agree on what it means" is completely unworkable? The whole purpose of passing legislation is generally to change something, and any time you change the status quo there are winners and losers, and the losers are certainly not going to be agreeing with the winners about the meaning of that law that just got passed. Then what? Where is your recourse? Two laypeople take each other to court and talk about who screwed over whom and how based on whatever facts they feel are pertinent and a judge – probably a lawyer, unless you're getting rid of them too – decides based on his or her personal mores who should win, because there is no basis in the language of the statute itself for deciding who is correct? How is this more civilized or less tyrannical? And why expect it to be less controversial? Everyone hates "activist judges" already, just imagine what it would be like if you neutered the main democratic check on judicial authority, namely the congressional ability to pass meaningful legislation with teeth.
People who draft statutes have to anticipate and address a lot of different contingencies, and the language has to be carefully picked to convey precisely what the intent and effect of the law is. What is so bad about all of this, and what exactly do you propose replacing it with?
And this paragraph...:
I know several attorneys - they live fat and happy off the sweat and blood of their clients. One is an IP attorney making $1500 an hour, who spends his time conjuring up hypothetical "what ifs" for his clients, in order to help them squash the competition. I know another guy who has a divorce mill going; the only thing he seems to care about is generating more hours so that he can open more offices and fill them with newly minted attorneys just out of law school. I know another guy who helps illegals maintain their rights - very laudable.
It sounds like your IP attorney (who I seriously doubt is personally making $1500 an hour in income) is providing a cost-justified service to his clients. I don't know why it should matter what the divorce lawyer's motives are; his clients need divorces and he is apparently good enough at it to open more offices. And if your comment regarding illegals is facetious, I don't even know what to say. None of this is actually a case against lawyers so much as a sneering and selective description of what they do.
posted by dixiecupdrinking at 8:53 PM on August 19, 2011 [3 favorites]
A couple other people have talked about this, but one reason lawyers' fees are high is because it's expensive to run a law firm. There are all the normal business expenses - payroll, rent, insurance, equipment, supplies, postage, IT support, accountant's fees - and then on top of that there are expenses specifically related to practicing law. For instance, the library: a very basic subscription plan, covering only updates to the U.S. Code, Federal Law, and State law, runs about $1,000 a month. And access to Westlaw, for three people, in one area of law (employment law), is around $500 a month.
Then there's professional liability insurance, a gazillion different kinds of professional dues (both those mandated by law and those mandated by custom), money spent on tickets to clients' benefit dinners, etc. Also, court fees and overnight delivery fees, which are reimbursed by the client but which the firm is out in the meantime. I know that every business has operating costs, but running a law firm is not as inexpensive as you'd imagine, if you happened to imagine work being done with just pens, paper, and a computer with an internet connection.
posted by subdee at 8:53 PM on August 19, 2011
Then there's professional liability insurance, a gazillion different kinds of professional dues (both those mandated by law and those mandated by custom), money spent on tickets to clients' benefit dinners, etc. Also, court fees and overnight delivery fees, which are reimbursed by the client but which the firm is out in the meantime. I know that every business has operating costs, but running a law firm is not as inexpensive as you'd imagine, if you happened to imagine work being done with just pens, paper, and a computer with an internet connection.
posted by subdee at 8:53 PM on August 19, 2011
Do you not see how a system based on "let's just write it in plain old English and everyone will agree on what it means" is completely unworkable? The whole purpose of passing legislation is generally to change something, and any time you change the status quo there are winners and losers, and the losers are certainly not going to be agreeing with the winners about the meaning of that law that just got passed. Then what? Where is your recourse?
I'm not arguing for "plain old English"; I'm arguing for language that is completely clear of jargon and doesn't need an attorney to understand.
Here's a phrase form a sample legal brief:
"The court reasoned that “the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” "
What? WHAT? How many times would a person of average intelligence have to read that phrase before s/he understood it? And, it's an *easy* piece of wordsmithing compared to a lot of the other stuff I've read.
We plainly disagree; having to decipher this stuff is ridiculous. That sentence could have been written in a way that any 12th grader should be able to understand it on first read.
Two laypeople take each other to court and talk about who screwed over whom and how based on whatever facts they feel are pertinent and a judge – probably a lawyer, unless you're getting rid of them too – decides based on his or her personal mores who should win, because there is no basis in the language of the statute itself for deciding who is correct?
Why not? Why isn't it clear? Why shouldn't the statute be written in a way that removes the possibility of loopholes, and written in clear language. One can be precise using clear language, instead of the foreign language we know as the "law". And, I'm not being cute here. This stuff is written in a way that guarantees work for attorneys. And, I don't see many attorneys working to clean this problem up.
None of this is actually a case against lawyers so much as a sneering and selective description of what they do.
ad hominum n service of confirmation bias? Nevertheless, the problem persists - too many people Americans do have access to the law because it's written in such a way - and made procedurally difficult in such a way - that they can't afford access. And, yes, I admit to intensely disliking a system that feeds on itself, and in the offing creates problems for those that have to test the system in the courts. We have WAY to many attorneys, and we pay WAY too much for their services. We need them, and have to pay them, because they are a cabal of professionals who are in some ways - ironically - themselves blind to the problem that others in their profession have created, and that they have become a necessary part of.
btw, my comment about the public interest attorney was not a quip; it was meant to congratulate attorneys who take that part of lawyering on, because the mess that our legal-language-oriented legislators and their staffs have gotten us into over the last few centuries has created a skewed system where the wealthy have way more access to the idiotic procedural clumsiness - and unnecessarily dense language that our mostly attorney-based legislative groups create. Nice gig.
Last, I'm not attacking the *people* who are lawyers; they're just like most other people - i.e. well-meaning. However, the profession that they're a part of - and the language and process that they initiate themselves into are far, far, far less than optimal relative to what they shuold be. America can do better than one attorney for every 250 people - my god! Just think about that? It's almost pathological - especially in a nation that claims transparency and access as basic to civil liberty and personal safety.
posted by Vibrissae at 9:46 PM on August 19, 2011
I'm not arguing for "plain old English"; I'm arguing for language that is completely clear of jargon and doesn't need an attorney to understand.
Here's a phrase form a sample legal brief:
"The court reasoned that “the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” "
What? WHAT? How many times would a person of average intelligence have to read that phrase before s/he understood it? And, it's an *easy* piece of wordsmithing compared to a lot of the other stuff I've read.
We plainly disagree; having to decipher this stuff is ridiculous. That sentence could have been written in a way that any 12th grader should be able to understand it on first read.
Two laypeople take each other to court and talk about who screwed over whom and how based on whatever facts they feel are pertinent and a judge – probably a lawyer, unless you're getting rid of them too – decides based on his or her personal mores who should win, because there is no basis in the language of the statute itself for deciding who is correct?
Why not? Why isn't it clear? Why shouldn't the statute be written in a way that removes the possibility of loopholes, and written in clear language. One can be precise using clear language, instead of the foreign language we know as the "law". And, I'm not being cute here. This stuff is written in a way that guarantees work for attorneys. And, I don't see many attorneys working to clean this problem up.
None of this is actually a case against lawyers so much as a sneering and selective description of what they do.
ad hominum n service of confirmation bias? Nevertheless, the problem persists - too many people Americans do have access to the law because it's written in such a way - and made procedurally difficult in such a way - that they can't afford access. And, yes, I admit to intensely disliking a system that feeds on itself, and in the offing creates problems for those that have to test the system in the courts. We have WAY to many attorneys, and we pay WAY too much for their services. We need them, and have to pay them, because they are a cabal of professionals who are in some ways - ironically - themselves blind to the problem that others in their profession have created, and that they have become a necessary part of.
btw, my comment about the public interest attorney was not a quip; it was meant to congratulate attorneys who take that part of lawyering on, because the mess that our legal-language-oriented legislators and their staffs have gotten us into over the last few centuries has created a skewed system where the wealthy have way more access to the idiotic procedural clumsiness - and unnecessarily dense language that our mostly attorney-based legislative groups create. Nice gig.
Last, I'm not attacking the *people* who are lawyers; they're just like most other people - i.e. well-meaning. However, the profession that they're a part of - and the language and process that they initiate themselves into are far, far, far less than optimal relative to what they shuold be. America can do better than one attorney for every 250 people - my god! Just think about that? It's almost pathological - especially in a nation that claims transparency and access as basic to civil liberty and personal safety.
posted by Vibrissae at 9:46 PM on August 19, 2011
it's expensive to run a law firm
Yes, it is, because the language and process of the law is made so complex that it has created a host of bottom-feeders. It makes me sick to walk into some law firm's offices - especially the IP firms. That entire crowd is the bane of modern technological progress, period. They have their fancy offices in the best part of town with their leather couches, grasscloth wall traetments, fine art, etc. etc. 90% of this group is parasitical - they literally cost Americans billions of $$$ every year. Last time I looked, Wilson Sonsini was up to well over $1.3 million NET per partner. Unreal!
posted by Vibrissae at 9:51 PM on August 19, 2011
Yes, it is, because the language and process of the law is made so complex that it has created a host of bottom-feeders. It makes me sick to walk into some law firm's offices - especially the IP firms. That entire crowd is the bane of modern technological progress, period. They have their fancy offices in the best part of town with their leather couches, grasscloth wall traetments, fine art, etc. etc. 90% of this group is parasitical - they literally cost Americans billions of $$$ every year. Last time I looked, Wilson Sonsini was up to well over $1.3 million NET per partner. Unreal!
posted by Vibrissae at 9:51 PM on August 19, 2011
"The court reasoned that “the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” "
In 12th-grade reading language, as best I can do.
"The court said that a student must be given an education. This education is protected by the Due Process Clause. The State cannot stop the student's education for bad behaviour unless they follow the due process clause."
Honestly? That's no simpler. And you lose the point that entitlement to a public interest is a property right (which for the record seems weird to me, but whatever). But the concept of property interest just isn't at a 12th-grade level, and definitely not when you import the entire toolbox that a lawyer has to deal with property rights, which is the point.
Life isn't clear. Requiring everything to be simple feels like a paean to the olden days when we could easily settle all questions, when nothing required precise language. Which would of course be before any environmental statute ever. Or before modern labour law, modern family law, yadda yadda.
posted by Lemurrhea at 10:13 PM on August 19, 2011
In 12th-grade reading language, as best I can do.
"The court said that a student must be given an education. This education is protected by the Due Process Clause. The State cannot stop the student's education for bad behaviour unless they follow the due process clause."
Honestly? That's no simpler. And you lose the point that entitlement to a public interest is a property right (which for the record seems weird to me, but whatever). But the concept of property interest just isn't at a 12th-grade level, and definitely not when you import the entire toolbox that a lawyer has to deal with property rights, which is the point.
Life isn't clear. Requiring everything to be simple feels like a paean to the olden days when we could easily settle all questions, when nothing required precise language. Which would of course be before any environmental statute ever. Or before modern labour law, modern family law, yadda yadda.
posted by Lemurrhea at 10:13 PM on August 19, 2011
your IP attorney (who I seriously doubt is personally making $1500 an hour in income)
Very very few attorneys in the US bill more than $1000 per hour. So yeah, no, he doesn't make (OR bill) $1500 per hour.
Washington and Lee University has turned the third year of its JD program into an entirely practice-based year.
posted by jayder at 11:07 PM on August 19, 2011
Very very few attorneys in the US bill more than $1000 per hour. So yeah, no, he doesn't make (OR bill) $1500 per hour.
Washington and Lee University has turned the third year of its JD program into an entirely practice-based year.
posted by jayder at 11:07 PM on August 19, 2011
I just want to relate an anecdote from my own life instead of responding directly to the argument that lawyers are parasites on society and we need to get rid of them and their useless legalese.
One of the best classes I took in law school was a seminar in which you, with a group of five friends, became a pretend supreme court. Every week, the professor handed out two "cases" on which the court would rule. We were bound by our own precedent, just like a real court, and we were free to dissent or write a separate concurring opinion. The subject matter of the seminar was equal protection.
Going into the class, I was high on a few years of law school. I'd been reading and mocking stupid opinions and my friends and I were full of jokes about the stupidity of our least favorite justices. We all knew how the worst cases should have come out and we were all pretty sure we could do better. I was pretty excited to get started. I was going to create a clear, simple, logical, just system of rules that everyone could understand and that would result in fairness and justice. (trumpets). My first few decisions were pretty... ambitious. But accomplished little. Within four or five cases, we were enmeshed in the morass of shitty things we had previously said. It's amazing how unclear we were. We thought we were being very clear and said lots of things like "the rule is..." or "the factors are..." and then we'd go back and realize we'd contradicted ourselves eight times and the factors were vague and so on.
The more cases we decided, the more complex and unmanageable our rules got. All of the fact patterns were based on real-life equal protection cases, and the facts got harder and harder. I ended up creating an insane spreadsheet in an attempt to track what the hell our court was doing and it still wasn't particularly clear to me.
Here's what is clear to me. There's a reason the rules are complicated. Life is complicated. Clear rules for easy cases aren't even useful. If I walk up to you on the street and stab you repeatedly while screaming I AM MURDERING YOU BECAUSE OF MY HATE FOR YOU then we don't need lots of rules for how to handle that because it's pretty clear. We need lots of rules for messy situations where the facts are muddled and we don't even fully understand what the right solutions are. The right solution for an angry murderous person is probably along the lines of "let's protect everyone by locking this person away and maybe no knives for a while with your meals dude." What's the right solution for a person whose criminal conduct is driven by a poorly-treatable mental illness and whose living situation is unstable due to poverty which may be in part the result of societal discrimination? Ughhhhh I dunno, I guess we're locking these people away too, should we pretend to treat them? What do we do if the treatment works? How do we ensure that their trial is fair given that they may have cognitive deficits? Is it fair to punish them at all? Is it fair to refuse them treatment? Is it fair to force treatment on them?
What's the "simple" rule for that? How are you going to ensure that rule, or any rule, is fairly applied?
But really, what I should have done instead of telling a long story with an obvious arc, is questioned the premise. Lawyers aren't translators of arcane fucking legal script. Believe me, read a statute over and over for a few hours and you'll penetrate its sacred mysteries. Anyone can understand the law, at least well enough to make an argument about it. What lawyers do is the following: 1) know how to figure out where the rules are written down; 2) know how to figure out where the procedures are written down; 3) save you the time and trouble of finding the rules, understanding the rules, then applying them to your situation; 4) ideally, have enough experience to know about some rules that you wouldn't expect to apply to your situation.
You can buy a book on legal research, go to a library, and after many MANY hours successfully gather about the same amount of relevant statutes and cases as a lawyer would. You can't, however, get a substitute for courtroom experience, experience with a certain kind of case, neutral objective detachment from the issues, and so on.
So... I think legal rules are complex because life is complex, not because lawyers are creating a reason for their continued leeching. And I think lawyers absolutely add value beyond what you can do for yourself pro se.
Stop shitting on lawyers. Cheap lawyers would improve life for many people in society who are folding to bad settlements or losing their kids because litigation is so expensive. Law school should not cost hundreds of thousands of dollars. Period. Anyone can learn how to find law, anyone can understand law once they've found it, and anyone can accumulate experience. Three years of gaining transitory subject-matter faux-expertise is not going to do shit for my legal career. The bar exam also makes me angry. It has literally no value beyond being an expensive barrier to entry.
Fuck the system. But not the lawyers.
posted by prefpara at 2:04 AM on August 20, 2011 [4 favorites]
One of the best classes I took in law school was a seminar in which you, with a group of five friends, became a pretend supreme court. Every week, the professor handed out two "cases" on which the court would rule. We were bound by our own precedent, just like a real court, and we were free to dissent or write a separate concurring opinion. The subject matter of the seminar was equal protection.
Going into the class, I was high on a few years of law school. I'd been reading and mocking stupid opinions and my friends and I were full of jokes about the stupidity of our least favorite justices. We all knew how the worst cases should have come out and we were all pretty sure we could do better. I was pretty excited to get started. I was going to create a clear, simple, logical, just system of rules that everyone could understand and that would result in fairness and justice. (trumpets). My first few decisions were pretty... ambitious. But accomplished little. Within four or five cases, we were enmeshed in the morass of shitty things we had previously said. It's amazing how unclear we were. We thought we were being very clear and said lots of things like "the rule is..." or "the factors are..." and then we'd go back and realize we'd contradicted ourselves eight times and the factors were vague and so on.
The more cases we decided, the more complex and unmanageable our rules got. All of the fact patterns were based on real-life equal protection cases, and the facts got harder and harder. I ended up creating an insane spreadsheet in an attempt to track what the hell our court was doing and it still wasn't particularly clear to me.
Here's what is clear to me. There's a reason the rules are complicated. Life is complicated. Clear rules for easy cases aren't even useful. If I walk up to you on the street and stab you repeatedly while screaming I AM MURDERING YOU BECAUSE OF MY HATE FOR YOU then we don't need lots of rules for how to handle that because it's pretty clear. We need lots of rules for messy situations where the facts are muddled and we don't even fully understand what the right solutions are. The right solution for an angry murderous person is probably along the lines of "let's protect everyone by locking this person away and maybe no knives for a while with your meals dude." What's the right solution for a person whose criminal conduct is driven by a poorly-treatable mental illness and whose living situation is unstable due to poverty which may be in part the result of societal discrimination? Ughhhhh I dunno, I guess we're locking these people away too, should we pretend to treat them? What do we do if the treatment works? How do we ensure that their trial is fair given that they may have cognitive deficits? Is it fair to punish them at all? Is it fair to refuse them treatment? Is it fair to force treatment on them?
What's the "simple" rule for that? How are you going to ensure that rule, or any rule, is fairly applied?
But really, what I should have done instead of telling a long story with an obvious arc, is questioned the premise. Lawyers aren't translators of arcane fucking legal script. Believe me, read a statute over and over for a few hours and you'll penetrate its sacred mysteries. Anyone can understand the law, at least well enough to make an argument about it. What lawyers do is the following: 1) know how to figure out where the rules are written down; 2) know how to figure out where the procedures are written down; 3) save you the time and trouble of finding the rules, understanding the rules, then applying them to your situation; 4) ideally, have enough experience to know about some rules that you wouldn't expect to apply to your situation.
You can buy a book on legal research, go to a library, and after many MANY hours successfully gather about the same amount of relevant statutes and cases as a lawyer would. You can't, however, get a substitute for courtroom experience, experience with a certain kind of case, neutral objective detachment from the issues, and so on.
So... I think legal rules are complex because life is complex, not because lawyers are creating a reason for their continued leeching. And I think lawyers absolutely add value beyond what you can do for yourself pro se.
Stop shitting on lawyers. Cheap lawyers would improve life for many people in society who are folding to bad settlements or losing their kids because litigation is so expensive. Law school should not cost hundreds of thousands of dollars. Period. Anyone can learn how to find law, anyone can understand law once they've found it, and anyone can accumulate experience. Three years of gaining transitory subject-matter faux-expertise is not going to do shit for my legal career. The bar exam also makes me angry. It has literally no value beyond being an expensive barrier to entry.
Fuck the system. But not the lawyers.
posted by prefpara at 2:04 AM on August 20, 2011 [4 favorites]
And by the way, I do agree that it's insane that people don't have access to the law. Statutes are usually online and searchable (at least federally, I'm sure it varies by state) but cases are extremely hard to get to. Which is nuts! However, making sure people have access to court decisions (as is their right) won't really diminish the need for lawyers.
posted by prefpara at 2:08 AM on August 20, 2011
posted by prefpara at 2:08 AM on August 20, 2011
By the way, vibrasse, I'm happy to send you those equal protection cases one by one. Do your best with them. I doubt your attempt to create clear and simple rules would survive past the third or fourth case.
posted by prefpara at 2:11 AM on August 20, 2011
posted by prefpara at 2:11 AM on August 20, 2011
Nevertheless, the problem persists - too many people Americans do have access to the law because it's written in such a way - and made procedurally difficult in such a way - that they can't afford access.
The "problem" here is not the way that law is written. It's because there's a whole freaking ton of it.
The legal system is not simply a question of applying the rules. A lot of it has to do with figuring out what the rules actually are, because there are four real sources of law. There's the Constitution, and while that doesn't come into play most of the time, you ignore it at your peril. There's statutes, passed by legislatures, which wind up being very important a lot of the time. Then you've got administrative regulations, i.e. executive agencies interpreting the statutes over which they've been given authority. You may think that tax code means "X," but if the IRS thinks it means "Y," you're probably screwed. Then there's judicial precedent, i.e. "What we did the last time this came up," which is essential for ensuring not only consistency in results, but is actually a source of law in itself. And we've got two hundred years of judicial precedent potentially applicable to every single case, so it's not like there's just one or two maxims you can just memorize and be good to go. Granted, most case law much older than twenty or thirty years is pretty suspect, but even that's a huge amount of stuff to know.
Maybe you think that's too complicated, but I gotta tell you, I can't for the life of me see how we'd ever get rid of any of those sources of law.* Doing so doesn't constitute a "reform" of the legal system, it would mean completely redoing the government from the ground up. And really, seriously, tell me which of these we don't need. The Constitution? Please. Statutory law? Human society has had statutes since at least 3700 years. They're an essential feature of civilization. Administrative agencies? Like, you know, law enforcement? The Department of Justice makes regulations just like the FDA. Or maybe you'd rather there be no regulation of anything. We could maybe do that, and some people really want to, but I doubt you'd like the results. Judicial precedent? Oh, so we're supposed to figure out what we're going to do from scratch every single time we do it? That wouldn't make the law easier, it'd make it harder, because now every single issue is always one of first impression, and you could never treat anything as a settled issue. Every single point of law would need to be re-argued from scratch every single time.
So really, what you're paying for when you hire an attorney isn't entirely just someone that can read better than you (though it's definitely that) you're also hiring someone who knows the current state of the law and where to look for helpful authority. The legal system is not complicated for the sheer hell of it. It's complicated because it needs to be. Your benighted insistence that these issues would be really simple if only the greedy lawyers would get out of the way is so shockingly ignorant that one is tempted to ask whether they even have ambiguity on your planet.
*And the common law/civil law distinction is less meaningful all the time. Common law judges increasingly rely on statutes, and civil law judges increasingly rely on precedent, so they look more and more exactly like each other with each passing year.
posted by valkyryn at 5:20 AM on August 20, 2011 [3 favorites]
The "problem" here is not the way that law is written. It's because there's a whole freaking ton of it.
The legal system is not simply a question of applying the rules. A lot of it has to do with figuring out what the rules actually are, because there are four real sources of law. There's the Constitution, and while that doesn't come into play most of the time, you ignore it at your peril. There's statutes, passed by legislatures, which wind up being very important a lot of the time. Then you've got administrative regulations, i.e. executive agencies interpreting the statutes over which they've been given authority. You may think that tax code means "X," but if the IRS thinks it means "Y," you're probably screwed. Then there's judicial precedent, i.e. "What we did the last time this came up," which is essential for ensuring not only consistency in results, but is actually a source of law in itself. And we've got two hundred years of judicial precedent potentially applicable to every single case, so it's not like there's just one or two maxims you can just memorize and be good to go. Granted, most case law much older than twenty or thirty years is pretty suspect, but even that's a huge amount of stuff to know.
Maybe you think that's too complicated, but I gotta tell you, I can't for the life of me see how we'd ever get rid of any of those sources of law.* Doing so doesn't constitute a "reform" of the legal system, it would mean completely redoing the government from the ground up. And really, seriously, tell me which of these we don't need. The Constitution? Please. Statutory law? Human society has had statutes since at least 3700 years. They're an essential feature of civilization. Administrative agencies? Like, you know, law enforcement? The Department of Justice makes regulations just like the FDA. Or maybe you'd rather there be no regulation of anything. We could maybe do that, and some people really want to, but I doubt you'd like the results. Judicial precedent? Oh, so we're supposed to figure out what we're going to do from scratch every single time we do it? That wouldn't make the law easier, it'd make it harder, because now every single issue is always one of first impression, and you could never treat anything as a settled issue. Every single point of law would need to be re-argued from scratch every single time.
So really, what you're paying for when you hire an attorney isn't entirely just someone that can read better than you (though it's definitely that) you're also hiring someone who knows the current state of the law and where to look for helpful authority. The legal system is not complicated for the sheer hell of it. It's complicated because it needs to be. Your benighted insistence that these issues would be really simple if only the greedy lawyers would get out of the way is so shockingly ignorant that one is tempted to ask whether they even have ambiguity on your planet.
*And the common law/civil law distinction is less meaningful all the time. Common law judges increasingly rely on statutes, and civil law judges increasingly rely on precedent, so they look more and more exactly like each other with each passing year.
posted by valkyryn at 5:20 AM on August 20, 2011 [3 favorites]
The court reasoned that “the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.”
This is actually a great example of why it isn't the language itself but the knowledge of the relevant law that is the main barrier to understanding. The quoted sentence, to me at least, is pretty immediately comprehensible, except that one might not understand several references made in it. At a minimum, you'd have to understand 1) that the Due Process Clause is part of the 14th Amendment and thus the Constitution and if it applies it is going to be a trump card here; 2) that the DPC generally speaking involves ensuring access to proper procedures before the state deprives someone of life, liberty or property; and 3) that, if I'm not mistaken, the Supreme Court in Goldberg v. Kelly (and maybe later cases applying to public education specifically) held that recipients of certain entitlements have a property interest in maintaining them which is subject to the DPC and so an appropriate hearing or similar process is legally required before taking them away.
I would actually venture to guess that the brief you pulled that quote from explains most of this, because otherwise it wouldn't be a very good brief. But it is an example of how the words in the sentence are pretty easily understood, it's the background knowledge that may be lacking.
In addition to all of that, a brief is not law in any sense, so it's kind of moot with respect to your main argument. Individual lawyers can be terrible writers, I will grant you that, but it isn't really hurting anyone except opposing counsel and judges who have to read their writing.
posted by dixiecupdrinking at 7:38 AM on August 20, 2011
This is actually a great example of why it isn't the language itself but the knowledge of the relevant law that is the main barrier to understanding. The quoted sentence, to me at least, is pretty immediately comprehensible, except that one might not understand several references made in it. At a minimum, you'd have to understand 1) that the Due Process Clause is part of the 14th Amendment and thus the Constitution and if it applies it is going to be a trump card here; 2) that the DPC generally speaking involves ensuring access to proper procedures before the state deprives someone of life, liberty or property; and 3) that, if I'm not mistaken, the Supreme Court in Goldberg v. Kelly (and maybe later cases applying to public education specifically) held that recipients of certain entitlements have a property interest in maintaining them which is subject to the DPC and so an appropriate hearing or similar process is legally required before taking them away.
I would actually venture to guess that the brief you pulled that quote from explains most of this, because otherwise it wouldn't be a very good brief. But it is an example of how the words in the sentence are pretty easily understood, it's the background knowledge that may be lacking.
In addition to all of that, a brief is not law in any sense, so it's kind of moot with respect to your main argument. Individual lawyers can be terrible writers, I will grant you that, but it isn't really hurting anyone except opposing counsel and judges who have to read their writing.
posted by dixiecupdrinking at 7:38 AM on August 20, 2011
Well, it is a quote from a court opinion, so forget my last point.
posted by dixiecupdrinking at 7:39 AM on August 20, 2011
posted by dixiecupdrinking at 7:39 AM on August 20, 2011
All good points, made from the perspective of what appear to be trained attorneys. I've learned a few things, but am not convinced that reform of the law - linguistically, and procedurally - should not be attempted. Yes, it would be a gargantuan job, but something needs to be done because American citizens are more and more isolated from the language and meaning to the law as we evolve. I find it disturbing that I should have to pay anyone for access to information about what my rights are - and then, even after I have put down my initial fee, I'm only making a bet that my attorney is smarter and better able to help me out than my antagonist on the other side. That's screwed.
This isn't like hiring a carpenter - where one would be expected to pay for services that one has not mastered oneself. This is about gaining ready, speedy and transparent access to the very laws - and process within which those laws are administered - that is my *right* as a citizen. Yet, even though it's my right, I have to pay for access to activate those rights. Something is wrong with this picture.
Frankly, I think the only solution to this - one that I'm not sure makes sense - would be to provide a legal education to anyone who wants one, for free - and that this education should be underwritten by our Federal government. Attached to that education would be the requirement that some substantial amount of time - at least 25% - of any licensed attorney's time would be devoted to pro bono work.
Right now, there is NOT equal access under the law - part of that problem is legislative (and remember, most law is written by lawyers); part of that problem is the result of arcane procedural structures that need to be thrown out; part of that problem is the insanely high barrier to access in hiring a specialist (an attorney) to access rights that one is *guaranteed* as an American citizen.
All that said, I don't see any of this changing anytime, soon. Attorneys have mortgages to pay and livings to make. They optimize their time, like anyone else. I still think the entire system stinks; it contributes to the increased stratification of our society, and rewards people for creating written documents and procedures that thwart transparency.
Is there a better way. I think so. Do I know what it is. No, but what really bothers me is I don't see any large-scale effort on the part of the ABA or our legislators to change any of this. And do it goes.
posted by Vibrissae at 10:51 AM on August 20, 2011
This isn't like hiring a carpenter - where one would be expected to pay for services that one has not mastered oneself. This is about gaining ready, speedy and transparent access to the very laws - and process within which those laws are administered - that is my *right* as a citizen. Yet, even though it's my right, I have to pay for access to activate those rights. Something is wrong with this picture.
Frankly, I think the only solution to this - one that I'm not sure makes sense - would be to provide a legal education to anyone who wants one, for free - and that this education should be underwritten by our Federal government. Attached to that education would be the requirement that some substantial amount of time - at least 25% - of any licensed attorney's time would be devoted to pro bono work.
Right now, there is NOT equal access under the law - part of that problem is legislative (and remember, most law is written by lawyers); part of that problem is the result of arcane procedural structures that need to be thrown out; part of that problem is the insanely high barrier to access in hiring a specialist (an attorney) to access rights that one is *guaranteed* as an American citizen.
All that said, I don't see any of this changing anytime, soon. Attorneys have mortgages to pay and livings to make. They optimize their time, like anyone else. I still think the entire system stinks; it contributes to the increased stratification of our society, and rewards people for creating written documents and procedures that thwart transparency.
Is there a better way. I think so. Do I know what it is. No, but what really bothers me is I don't see any large-scale effort on the part of the ABA or our legislators to change any of this. And do it goes.
posted by Vibrissae at 10:51 AM on August 20, 2011
I find it disturbing that I should have to pay anyone for access to information about what my rights are - and then, even after I have put down my initial fee, I'm only making a bet that my attorney is smarter and better able to help me out than my antagonist on the other side. That's screwed.
One thing we are in complete agreement about is that access to the actual text of the law should be a lot easier and cheaper than it is currently. We're talking about stuff that is in the freaking public domain that is largely behind a paywall. That's f-ed.
part of that problem is the result of arcane procedural structures that need to be thrown out
Yeah, you still just don't get it. First of all, those "arcane procedural structures" you refer to largely were thrown out. Like, almost a century ago. The Federal Rules of Civil Procedure were a massive simplification of civil procedure and represent one of the most successful legal reforms in history, and the motivation was explicitly to privilege substance over form. In fact, they were so successful that they resulted in a wave of such reforms, including the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, upon which most state rules are based.
What am I talking about? Well, as recently as the nineteenth century, there were dozens of different forms of action, and if you or your lawyer picked the wrong one, your case was dismissed even if you could prove you were in the right. Now that's the kind of arcane procedural injustice you're complaining about. And it no longer exists. Now there's just one form of action, the civil action, and judges across the country deliberately, self-consciously, and explicitly privilege substance over form. Indeed, if violating a procedural rule is going to cause you to lose the case, many judges will choose to bend the rule if they can.
Now the fact remains that there will always be rules. There must be, otherwise litigating cases would be no different than arguing on the internet. But the rules have already been simplified pretty much down to the bone. You seem to be reacting more to a stereotype of the way the law was a century ago than to the way it is now. This is pretty common: when something exists more-or-less unchanged for seven-odd hundred years, it takes more than a single generation for those stereotypes to fade.
But here's the thing: the kind of system you seem to want, where there are a minimum of laws and rules and no real attorneys, existed at one point. And it sucked. Criminal justice amounted to little more than a lynch mob. Seriously, if someone discovered a body, they were legally obligated to "raise the hue and cry," and the townsfolk would turn out to find who did it. If they did, they strung the guy up right then and there. No trial, no procedure, nuthin'. Summary execution. Even theft above a relatively minor amount was a capital crime. Floggings and public executions were considered good family fun and were a popular part of fairs and market days.
So all these "arcane procedural structures" you don't like? They're what make your life possible.
posted by valkyryn at 5:01 PM on August 20, 2011 [3 favorites]
One thing we are in complete agreement about is that access to the actual text of the law should be a lot easier and cheaper than it is currently. We're talking about stuff that is in the freaking public domain that is largely behind a paywall. That's f-ed.
part of that problem is the result of arcane procedural structures that need to be thrown out
Yeah, you still just don't get it. First of all, those "arcane procedural structures" you refer to largely were thrown out. Like, almost a century ago. The Federal Rules of Civil Procedure were a massive simplification of civil procedure and represent one of the most successful legal reforms in history, and the motivation was explicitly to privilege substance over form. In fact, they were so successful that they resulted in a wave of such reforms, including the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, upon which most state rules are based.
What am I talking about? Well, as recently as the nineteenth century, there were dozens of different forms of action, and if you or your lawyer picked the wrong one, your case was dismissed even if you could prove you were in the right. Now that's the kind of arcane procedural injustice you're complaining about. And it no longer exists. Now there's just one form of action, the civil action, and judges across the country deliberately, self-consciously, and explicitly privilege substance over form. Indeed, if violating a procedural rule is going to cause you to lose the case, many judges will choose to bend the rule if they can.
Now the fact remains that there will always be rules. There must be, otherwise litigating cases would be no different than arguing on the internet. But the rules have already been simplified pretty much down to the bone. You seem to be reacting more to a stereotype of the way the law was a century ago than to the way it is now. This is pretty common: when something exists more-or-less unchanged for seven-odd hundred years, it takes more than a single generation for those stereotypes to fade.
But here's the thing: the kind of system you seem to want, where there are a minimum of laws and rules and no real attorneys, existed at one point. And it sucked. Criminal justice amounted to little more than a lynch mob. Seriously, if someone discovered a body, they were legally obligated to "raise the hue and cry," and the townsfolk would turn out to find who did it. If they did, they strung the guy up right then and there. No trial, no procedure, nuthin'. Summary execution. Even theft above a relatively minor amount was a capital crime. Floggings and public executions were considered good family fun and were a popular part of fairs and market days.
So all these "arcane procedural structures" you don't like? They're what make your life possible.
posted by valkyryn at 5:01 PM on August 20, 2011 [3 favorites]
But here's the thing: the kind of system you seem to want, where there are a minimum of laws and rules and no real attorneys, existed at one point. And it sucked. Criminal justice amounted to little more than a lynch mob. Seriously, if someone discovered a body, they were legally obligated to "raise the hue and cry," and the townsfolk would turn out to find who did it. If they did, they strung the guy up right then and there. No trial, no procedure, nuthin'. Summary execution. Even theft above a relatively minor amount was a capital crime. Floggings and public executions were considered good family fun and were a popular part of fairs and market days.
So all these "arcane procedural structures" you don't like? They're what make your life possible.
You're committing a logical fallacy and arguing to extreme cases; I'm not arguing for the complete elimination of attorneys. I'm arguing for FAR more transparency and lower costs to access the law.
Earlier, posted a link to MeFI - to a list showing the top 100 growing companies re: net revenue - some editor at MeFi got all in a snit and deleted the post. Juvenile. Anyway, here's the list - isn't something wrong with this picture? Things may be better than they were in the days of Thomas More, but we've got a LONG way to go before the law is made to serve, rather than subjugate, as well as costing an arm and a leg.
We're in partial agreement, but you have a living to make.
posted by Vibrissae at 5:08 PM on August 20, 2011
So all these "arcane procedural structures" you don't like? They're what make your life possible.
You're committing a logical fallacy and arguing to extreme cases; I'm not arguing for the complete elimination of attorneys. I'm arguing for FAR more transparency and lower costs to access the law.
Earlier, posted a link to MeFI - to a list showing the top 100 growing companies re: net revenue - some editor at MeFi got all in a snit and deleted the post. Juvenile. Anyway, here's the list - isn't something wrong with this picture? Things may be better than they were in the days of Thomas More, but we've got a LONG way to go before the law is made to serve, rather than subjugate, as well as costing an arm and a leg.
We're in partial agreement, but you have a living to make.
posted by Vibrissae at 5:08 PM on August 20, 2011
Earlier, posted a link to MeFI - to a list showing the top 100 growing companies re: net revenue - some editor at MeFi got all in a snit and deleted the post.
You want to complain about moderation, go to Metatalk or write us at the contact form. Do not keep doing the metacommentary-in-random-threads thing. If you're not reading your email, read it; if you are and are opting to ignore us, you don't leave us a lot of room for nuance in making sure you cut this stuff out.
posted by cortex at 10:05 AM on August 21, 2011
You want to complain about moderation, go to Metatalk or write us at the contact form. Do not keep doing the metacommentary-in-random-threads thing. If you're not reading your email, read it; if you are and are opting to ignore us, you don't leave us a lot of room for nuance in making sure you cut this stuff out.
posted by cortex at 10:05 AM on August 21, 2011
« Older The pop culture art of Phil Noto | Shortage of STEM Workers Newer »
This thread has been archived and is closed to new comments
posted by tylerkaraszewski at 8:32 AM on August 19, 2011 [6 favorites]