Lawyers: It’s a Regulated Life For Us

This week, aspiring lawyers across the country sat for state bar examinations, hoping to be admitted to practice law in that particular state. Having already expressed my thoughts on law school in particular, this seemed like a good week to step back and think about how law school fits into the broader professional regulatory scheme.

When the regulator in question is not a government agency, commission, or department, it can be difficult to detect that regulation even is taking place. When it comes to individuals in daily life, I have suggested the possibility that it doesn’t really matter whether a powerful actor is public or private, but experience shows that public regulators are easier to identify than private ones. The situation with the legal profession is even less obvious where there are multiple regulatory actors.

Two things to look for when attempting to identify a regulatory scheme are externally imposed hurdles and costs. In trying to do something, has someone else prescribed steps you must take to reach your goal? Does someone charge you money as a part of these intermediate steps to reaching your goal? If so, there’s a good chance you’re engaging in regulated activity. A familiar example from the public regulatory context is driving a car. Before operating the car you recently purchased, the state in which you live must license you to do so. State Departments of Transportation or Motor Vehicles must issue you a license, often after a series of competency examinations (e.g., vision, operating competency, and vehicular emissions) and assessment of a variety of fees for the privilege of using your car on government-owned roads.

Before examining the particularities of the legal profession, it is important to recognize that, while other professions self-regulate through various means, no profession is better at getting its professional protectionist measures enshrined in law than the legal profession. In most states, it is a crime to practice law without a license. In effect, this fact gives the other, privately required costs the force of law.

Rather than dwell on the details of each regulatory hurdle, a numbered list follows, identifying the gatekeeping element and a price tag. “Cost,” in this discussion, is about more than price, and includes autonomy and opportunity costs too. The list is arranged chronologically.

1. Preparation for the Law School Admission Test (LSAT). This is a non-mandatory step, but it is included because it is highly recommended and nearly universally taken. The Law School Admission Council (LSAC), the company that owns and administers the LSAT (the only law school admission test) does offer for free an extremely limited set of free preparatory materials. Most people opt for a third-party preparation course, like those from Kaplan, which range from $899 to $7,999.
2. The LSAT. The single-day test costs $136 to take.
3. The law school application process. Applicants must submit their application materials like transcripts, writing samples, and letters of recommendation to the LSAC-run Credential Assembly Service (CAS). At a cost of $124, plus $12 per school, CAS repackages these materials, along with the applicant’s LSAT score, and sends them to law schools. Applicants submit only basic application information directly to law schools, which charge their own application fees of about $75.
4. Law school. This earlier post focused on law school itself, and the comments have additional information relevant to this post. The fact that many students finance law school through loans complicates the assessment of tuition cost.
5. Preparation for the bar examination. As with #1, preparation is non-mandatory but highly recommended and widely done. Courses from the most popular third-party service, BARBRI, cost between $3,000 and $4,000.
6. The bar examination. The length of the exam and cost to take it vary by state. The price usually is between $200 and $1,000, and the exam takes place over two or three days.
7. The state bar association. Some states also mandate membership in the state bar association and payment of membership dues.
8. Continuing legal education. Some states require attorneys to take continuing legal education (CLE) courses as a part of maintaining their license to practice. Most CLE credits come with a price tag.

Unmentioned in this list is the American Bar Association (ABA). Membership is optional and not all lawyers join. The ABA is the major source of CLE offerings, though, and is the accrediting organization for law schools. The latter role is important because graduation from an ABA-accredited law school is a prerequisite to sitting for the bar exam in most states.

Also unmentioned is the role of each state’s rules of professional responsibility. State supreme courts are the usual promulgators of these rules, which give the rules a higher legal authority than the ethics rules of other professions. The ostensible purpose of the rules, like those prohibiting non-lawyers to have a stake in a litigation matter, is to protect the legal profession from corruption and unethical incentives. In practice, these rules provide a basis for economic protection of the profession in the form of barriers to entry. The only way to be a lawyer is to overcome the eight regulatory hurdles listed here. To take another path is a criminal offense.

Unlicensed practitioners are criminal losers

When there is a mismatch of information between professional and layperson, licensing can serve an important informational function to potential customers. Here, licensing takes the form of a multi-part regulatory scheme carried out by a variety of public and private entities– LSAC, law schools, state bar associations, state supreme courts, and the ABA– colluding to maintain the regulatory scheme, protect the profession from corruption and entry, and protect their own profitable, powerful roles within their own scheme. The goals of upholding ethical behavior and quality of service are valid. The question is whether the described arrangement is the best way to pursue those goals.

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The settling of conflicts is one lens through which to view the progression of civilization. To this point, conflict seems to be endemic to human society, and we appear to have an inclination to resolve these conflicts. This extends to more general areas like arguments and problem solving.

A rough history suggests that, early on, the way to resolve conflict was through physical violence and, if the scale and magnitude necessitated, war. As nomadic tribes coalesced into agrarian communities, humanity saw the rise of civil society, politics and diplomacy, and the eventual proliferation of oral and verbal discourse. See also The Beer Theory of Civilization; I’ll Take My Stand: The South and the Agrarian Tradition. This notion of a shift from violence and war to civil discourse, peaceable assemblies, and political engagement isn’t a perfect historical description, of course. More than a few early cultures had their philosophers and deliberative political structures, and more than a few modern states continue to rely on militaristic means of conflict resolution. (Indeed, physical violence probably remains the real trump card in the vast majority of aggregate and individual dispute resolution.) Still, there has been a marked development of peaceful, deliberative means of problem solving in recent centuries.

The United States is no stranger to violent means of conflict resolution, even setting aside foreign policy. The Civil War stands out in this respect, as do the dropping of the atomic bomb and the violent and deadly acts of those dubbed “domestic terrorists.” Even the dueling that claimed the life of one of America’s greatest Founding Fathers was a recognized part of the European culture Americans imported and sustained for some time. By the time of the civil rights movement, violence remained on the table and indeed was a viable option for both sides. There nevertheless was a perceivable shift in which violence was a last resort and peaceable means were preferred in the first instance.

The peak of this time of civic unrest, the late 1960s, has become an archetypical reference point for much of the subsequent civic and political action. The question now is whether this model has been stretched too thin, overused, and, in a certain way, too peaceful, in the age of the internet. Is web-based “social networking” the sort of engagement and participation that would impress Tocqueville, Kennedy, King, Putnam, or Armstrong? Are 140 characters enough for a meaningful treatise? Can a Facebook.com group change the world? Or should we just grab a groupon and plan our revolutions face-to-face at the newest eatery (that checks out on Yelp, of course)? In short, global electronic connectivity has fostered the rise of a sort of wide-sweeping, possibly disparate civic engagement, but is it of significant consequence? Have we walked too far away from the days of settling our differences and sorting things out on the battlefield?

During that high period of American public participation more than forty years ago, a British group already was recognizing the runaway (from meaningfulness) potential of burgeoning civic engagement. The melodic title track of an album otherwise described as “sentimental” and “nostalgic” has a more satirical ring in my ears. (That or it’s the most conservative song ever written by a group banned from performing in the U.S.) Lyrics are available here.  A live performance from 1973 gives the feel:

The familiar album version is available below, and there is space for your responsive comments below that. Whether you have some ideas about the role of violence in modern dispute resolution, the future of web-based civic engagement, or a new verse to add to the song, I welcome your thoughts.

Judicially Speaking, Cut the #$*@%!

On Tuesday, the U.S. Court of Appeals for the Second Circuit rejected the Federal Communications Commission’s strict broadcast indecency rule as unconstitutionally vague. The Los Angeles Times first reported the news here. The Second Circuit already heard the case once, Fox v. FCC, 489 F.3d 444 (2d Cir. 2007), and when its initial ruling was appealed, the Supreme Court upheld the FCC’s rule in a limited holding, FCC v. Fox, 129 S.Ct. 1800 (2009). The Court decided only that the rule was not arbitrary and capricious under the Administrative Procedure Act; it reserved judgment on the constitutional question, which the Second Circuit answered Tuesday.

Fox news: For Justice Thomas, the 21st Century Fox means closing the doors on 20th century precedent.

Communication between judges can be different from communication between other types of public officials. Court-watchers find Supreme Court oral arguments to be important, in part, because the justices can try to influence each other or tip their hands to counsel and the public through their questioning. Judges in different courts try to communicate with and influence each other too. Most obviously and frequently, this happens when a higher court sends an appealed case back to the lower court (called “remanding”) for further proceedings in light of the instructions and guidance in the higher court’s written opinion. Intra-court communication can happen in less obvious ways too. Judge Diarmuid O’Scannlain’s concurrence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004) is one example. In that case, dealing with the First Amendment speech rights of public employees, O’Scannlain voted in favor of the court’s opinion because it followed Ninth Circuit precedent, but he disagreed with that precedent and the accordant outcome of the case before him and wrote as much in a separate concurring opinion. This separate opinion by a noted conservative judge on a court with a liberal reputation served as a message to the justices of the Supreme Court, which trended conservative. The Supreme Court took the case and reversed the Ninth Circuit’s decision. Garcetti v. Ceballos, 547 U.S. 410 (2006). O’Scannlain’s concurrence served as a blueprint for Justice Anthony Kennedy’s majority opinion, which Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined, and Kennedy even mentioned O’Scannlain by name and cited his concurring opinion. See id. at 416-17.

Something similar is going on in the FCC case, the latest chapter of which the Second Circuit wrote Tuesday. When the Supreme Court passed on the case after the Second Circuit’s first ruling, Justice Thomas concurred in the majority decision that upheld the ruling. FCC v. Fox, 129 S.Ct. at 1819 (Thomas, J., concurring). In his separate opinion, Thomas explained that the majority correctly upheld the FCC’s rule as a matter of administrative law, but he expressed a willingness to strike down the rule on First Amendment grounds. As Mike Sacks reports, Tuesday’s Second Circuit opinion echoes Thomas’ concurrence. The Second Circuit reached the end Thomas prescribed, rejecting the rule on constitutional grounds, but had to use different reasoning to reach that result because Thomas’ approach required overturning Supreme Court precedent, means only available to the Supreme Court. See id. at 1819-20 (“I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”) (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). Unlike the Garcetti example mentioned above, which featured a court of appeals judge sending a message to the Supreme Court justices, it was a Supreme Court justice signaling the court of appeals judges in Fox. As such, there may be one more audience for Thomas’ concurrence: his fellow justices. If the government appeals this most recent ruling, Thomas’ view will be before his colleagues, who, unlike the court of appeals judges, have the authority to affirm his result (striking down the rule) with his reasoning (overruling Red Lion and Pacifica and holding that the rule is unconstitutional under the First Amendment). If nothing else, a second appeal to the Supreme Court will allow Thomas to achieve a judicial communication hat trick— 1) his original concurrence; 2) sent as a message to the Second Circuit; 3) a version of which would return to the Supreme Court in the form of the appealed decision, should the government appeal the latest ruling.

Memories, Borne on the Fourth of July

Most holidays are observed for the purpose of commemorating the past– its happenings and people– rather than occasioning a purely in-the-moment or prospective practice or event. (And even this latter sort of holiday, by its regular and repeated practice, likely would develop a retrospective aspect as the observation became ritualized and a tradition of active observamce built up. Sporting championships like Super Bowl Sunday or the World Series might be an example of this type of holiday.) “Commemoration,” what we do on most of our holidays, suggests an act of collective remembrance.* So stated, the practice of holiday observation has two aspects: remembering and acting. We remember the historical happenings that or people who merited designation of a special day and we do so through various acts of remembrance.

As applied to American Independence Day, observed on the fourth day of July due to the adoption of the Declaration of Independence by the Continental Congress on that date in 1776, the holiday directs our collective remembrance to the distant and recent past in consideration of those responsible for American independence. First, we should actively recall those fifty-six men who, along with their families, acted boldly with conviction and suffered because of it:

Massachusetts
John Hancock
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry

New Hampshire
Josiah Bartlett
William Whipple
Matthew Thornton

Rhode Island
Stephen Hopkins
William Ellery

Connecticut
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott

New York
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris

New Jersey
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark

Pennsylvania
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross

Delaware
Caesar Rodney
George Read
Thomas M’Kean

Maryland
Samuel Chase
William Paca
Thomas Stone
Charles Carrol

Virginia
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton

North Carolina
William Hooper
Joseph Hewes
John Penn

South Carolina
Edward Rutledge
Thomas Heyward
Thomas Lynch
Arthur Middleton

Georgia
Button Gwinnett
Lyman Hall
George Walton

Next, we should remember those throughout the nation’s history, including its very recent history, who served the country in a wide variety of capacities, especially those who, in service, gave the ultimate sacrifice.

As for the action component, I think fireworks, parades, and a celebratory mood with family and friends, perhaps along with a reading of names, should do just fine. Happy 234th, America!

* I am away from my books and dictionaries at the moment, so this etymological breakdown is a matter of uninformed impression. While I’m at it, I might hazard a guess on “holiday,” which could be from “holy day,” suggesting a day of special reverence. A noted aspect of most of our holidays today is that they are governmentally recognized. The “holy day” reading could be a throwback to times when the only state-recognized holidays would have been those in accordance with the official state religion. As a final note, I am recalling the possibly British use of “holiday” simply to mean “vacation” without any special significance.