[Ed. Note: This story about how America has become a nation governed by the “Rule of Lawyers” was originally published on our sister blog, the Guerilla Law Firm Blog. Visit that blog for stories about the practice of law and the future of the legal profession.]
Last weekend’s Wall Street Journal featured a story by Niall Ferguson titled “How America Lost Its Way.” The story is excerpted from Ferguson’s new book, “The Great Degeneration: How Institutions Decay and Economies Die.” In his story, the author cites several reasons for the loss of entrepreneurs in America. Included are excessive taxes, too much regulation and bureaucracy, and lawyers.
Yes, lawyers are part of our problem.
It’s not just lawyers, however, it is also how Congress and the Executive Branch have made everything so complicated. The Wall Street Reform and Consumer Protection Act of 2010 (better known as Dodd Frank)? A mere 848 pages. More importantly, that single act has required hundreds of rules comprising of thousands and thousands of pages, 67 studies and a myriad of new federal employees and forms.
Is that the fault of lawyers? Probably not but lawyers surely exacerbate the problem and frivolous litigation certainly is the fault of lawyers.
There are few quantifiable measures of how our legal system compares to others. Ferguson cites the Fraser Institute’s “Economic Freedom” index which in part measures the quality of our legal system. In 2000 we scored an impressive 9.23 out of 10. A decade later our score had dropped precipitously to a mediocre 7.12.
A second measure cited in the article is the World Justice Project’s comparative measure of national legal systems. According to Ferguson, the latest score for the U.S. is 17th place (out of 97 countries) for the extent the law limits the power of government, 18th for the absence of corruption, 19th for regulatory enforcement and 25th for fundamental rights. We rank behind all the former British colonies worldwide apparently, except for Botswana.
Statistics can be quite depressing, particularly if cited in a vacuum. What does all this mean? I haven’t read Ferguson’s book (it gets released tomorrow), but its easy to draw certain conclusions.
Our laws and regulatory environment has become much too complex. That is the ideal environment for lawyers. In a sense we truly have become a nation governed by the Rule of Lawyers. Unfortunately, society has created the environment where lawyers have become a necessary evil.
Access to justice has also suffered. That means big business has an easier time in courts – they can afford the access and the expensive lawyers.
Simply bringing down the cost of legal services and making those services more available to smaller businesses and people is a good start but its not the answer. Substantial reforms are also necessary.
As our sinking rankings reveal, more laws don’t make us a nation that follows the rule of law. Just a nation governed by the rule of lawyers.
That’s our two cents.