That man-made carbon dioxide has a net planetary warming effect is an important hypothesis, one that science can make stronger or weaker, but can't prove. It may be true, but a layperson only has to look into the antecedents of today's "consensus" to realize it wouldn't be too surprising if tomorrow's consensus were that CO2 is cooling, or neutral, or warming here and cooling there.

 

And evidence of warming is not evidence of carbon-driven warming. These are different things, at least until scientists can be reasonably certain they've eliminated other factors and interrelationships that contribute to climate variability. But scientists are not close to understanding or even knowing all the factors that play into "climate change," a process that might as well be called "climate," since climate is always changing.

 

Finally, warming and what might cause warming are subjects entirely separable from the urge to gather up all the most dire and extreme speculation about what a warming earth would be like for humans and present it as scientific "truth."

 

Mr. Gore's narrative isn't science, but science fiction.

With Larry’s response to my last point, I think the issue of lawyer licensing comes to a head.

 

Larry endorses my recommendation for a Presidential Blue Ribbon Commission, but he says that the panel should focus “on problems in the market for legal services, not just one for abusive litigation.”

 

And that prompts me to ask, “What are the problems in the market for legal services?” Larry’s position is that lawyer licensing does not address these problems. In response to my contention that lawyer licensing ensures lawyer competence and honesty, he conceded that the licensing contributes to these goals, but questioned, “How much, at what cost, and compared to what?”

 

I’m not sure that Larry has articulated what he perceives to be the problems in the legal marketplace, so let me suggest a few and see how lawyer licensing functions as a possible solution.

Continued

"Well, it [9/11] might have been [prevented] if this had been seen in the context of other information, which indicated that there was a potential conspiracy to use commercial airliners as weapons of mass destruction . . . That could have started a chain of events, which would have disrupted September 11, but unfortunately because the information was not placed in the right hands or was distributed to too many places, there wasn't a single point of contact for analysis and reporting of what was going on.

Improve and expand the use of data miniming technologies and analysis tools.

About Moammar Ghadafi, Ronald Reagan once remarked that not only was the Libyan dictator a barbarian, he was also flaky. Regarding the publication yesterday of Mahmoud Ahmadinejad's "letter" to President Bush, flaky is being kind.

As I have discussed here, and in Lawyers’ Property Rights in State Law (published as Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004)) there is scant justification for lawyer licensing laws. My limited defense of licensing is based on encouraging lawyers to participate in lawmaking. My theory would sharply reduce the scope of licensing requirements.

I am beginning to wonder whether it's worth preserving any piece of lawyers’ monopoly on legal representation. Cases like the one the NYT discusses make me wonder more. Clearly there was no client-protection justification. Since Mr. Woods could have acted as his own lawyer, and for his son in finding a lawyer, there's obviously no reason not to let him decide to dispense with the lawyer rather than paying the huge fee a lawyer would have asked or having to drop the case.

I appreciate Professor Ribstein's law and economics vantage point on lawyer licensing.  Free market advocates seldom love a monopoly, let alone one that is mandated by law.  Yet the traditional justification for the special monopoly that lawyers have is, I think, more than adequate.

But first a preface: There is much to criticize in the current state of lawyer licensing.  Most state bars are dominated by plaintiffs' lawyers and the current focus of many state bars is the enrichment of lawyers, rather than the policing of the profession.  It is far too difficult for consumers to have their concerns heard by the disciplinary boards and discipline is far too infrequent to serve as an effective deterrent to lawyer misconduct. 

My defense of lawyer licensing is not a defense of the status quo with respect to the various bars.

More accurately, though, lawyer licensing is necessary because legal services are precisely the kind of good for which the market is an inefficient method of regulation.

There are, in reality, at least two markets in which legal services are bought and sold.  There is the corporate market, where purchasers are comprised of significant corporate buyers, often with in-house counsel, and generally with some level of sophistication.  For more matters, corporate buyers can require law firms to engage in a lengthy "beauty contest" in which the market can play a role.  Sophisticated buyers can use this market process to wean out weaker producers and obtain the best price for their needs.

Corporate buyers of legal services do, in fact, have little need of state licensing.  The corporate legal marketplace, if left to its own devices, would, in the long run, produce an efficient price and tend to wean out poor producers of legal services.

A second market, however, is the consumer market.  Consumers are generally ill-equipped to evaluate their own legal needs and are generally unable to evaluate the merits of competing producers.  Consumers cannot evaluate competing price proposals (and in many consumer decisions their is no realistic price competition) and consumers are often left to the tender mercies of their lawyers when it comes to price and service levels.

The occasional human interest story (like the one Ribstein quotes) might give hope to those individuals who wish to represent themselves or close family members, but it shouldn't inspire laypersons to become unlicensed lawyers.  The current state of lawyer licensing may be flawed, but it is better than the state of affairs that would exist if lawyering was utterly unlicensed. 

If the doors to the practice of law were completely unlocked by any licensing requirement, any charlatan with a website and a business card could hold himself out as qualified.  Consumers could be easily bamboozled into trusting their money (and their legal rights) to smooth-talking salesmen (and women) who know nothing at all about lawyering. 

There is much we can and should do to improve the practice of law and the regulation of lawyers.  Eliminating lawyer licensing, however, would be a step backward.

It is as if we've become sophisticated beyond our intelligence, savvy beyond wisdom. Some might say we are showing a great and careful generosity, as befits a great nation. But maybe we're just, or also, rolling in our high-mindedness like a puppy in the grass. Maybe we are losing some crude old grit. Maybe it's not good we lose it.

Open societies flourish because they are driven by intelligence and information; the U.S. tort system creates an enclave of idiotic whimsy in the heart of the most open society in the world. But the Vioxx litigation does not merely celebrate dumb prejudice. It's extraordinarily expensive. For this year alone, Merck has set aside a legal war chest of $685 million. The Vioxx lawsuits could eventually cost it between $10 billion and $50 billion.

 

Did those numbers sink in properly? The midpoint of those estimates -- $30 billion -- is six times more than the federal government spends annually on cancer research. Or, to put it another way, $30 billion is about five times Merck's annual earnings, meaning that one of the world's top pharmaceutical research establishments is fighting for survival. At a time when Americans fret over relative decline in science and business, it's insane to sink a flagship scientific company in order to line the pockets of unscrupulous lawyers.

 

The first politician who says this will be called an enemy of injured victims, but he or she will also deserve to be called bold and right. Perhaps the nation could create a pool of scientific jurors -- retired doctors and such -- to hear medical cases; perhaps it could penalize lawyers who bring expensive cases that get overturned by higher courts. Whatever the solution, there's undeniably a problem. The status quo is nuts.