Decimon...you sound like one of those free market, pro liberty, self-responsibility wackos who thinks that people are actually smart and responsible enough to choose a good lawyer. But what about all the risk of getting some nutjob? Doesn't the bar protect us from that? I mean it is not as easy or of little importance as choosing a baby sitter or child care provider... Good post Decimon.
I wish that the Bar exam DID protect the public from incompetent nutjobs. Unfortunately, in my present position with the Courts, I see poor work from licensed attorneys every day. Sometimes it is so bad that I actually file disciplinary complaints. Understand, please, that the VAST majority of lawyer's work that I see is of good quality. Thing is, the Bar exam isn't why. The American Bar Association has a position paper on its web site www.abanet.org defending the need for a Bar exam. I confess that I am not convinced. The Bar of England and Wales has abandoned the Bar exam altogether. However, they ALSO have a significant requirement for clerkship or pupillage before releasing the new barrister or solicitor on an unsuspecting public. We don't, for the most part (Delaware excepted) I do not argue that we don't need a Bar per se. We need to exclude the plainly dishonest and the amazingly incompetent.
I'm not ideological in the sense of adhering to "foolish consistencies" but am otherwise guilty as charged.
nosborne, What of the guild aspect? I've nothing at hand to cite but know that licensing has been shown to have roots not in protecting the public but in limiting entry into fields of employment. Not better plumbers or lawyers?
Decimon...I fall in the same boat as you. As far as citing anything regarding the guild aspect of the Bar...it is the same as unionization so from an economic point of view I would point you to the Public Choice school of thought, and the Austrian Economists have talked about this for about 100 years showing that it is exactly as you suspect...a means of exclusion. It is another for of government supported monopoly that allows them to rent seek. As another bad example of keeping the public safe...here in VA hair dressers and barbers must pass the same sort of test and be certified...I guess this keeps the public safe from a mass of bad hair days?
Sounds like the African hairbraiding case won by the Institute for Justice. A little plug for a group I like.
The "guild thing" is always the result when a profession or trade is licensed. Barbers, accountants, lawyers, dentists, all are "guild" members because any applicant for a license must meet requirements set by the guild itself. Legislation SHOULD try to balance the public's interest in honest and competent service with the public's interest in not paying more for a service than it should. I admit that I have my doubts. In England, for example, one needs to be a solicitor only to draft a will, convey real estate, or engage a barrister. One need be a barrister only to plead a case in a court of record. This is the extent of the legal monopoly. In the U.S., the monopoly extends much further, to include drafting all sorts of documents with legal consequences and the giving of legal advice under almost any circumstances. There was a period in the earlier 19th century when the learned professions were essentially thrown open to anyone who wished to hang out a shingle. This was something of a hallmark of Jacksonian democracy. It didn't last; I really don't know why. I suppose it goes without saying that the guild really isn't necessary to the survival of a profession; English businesses and individuals consult their solicitors for a much greater range of legal matters than wills and real estate. I don't know about barristers; there aren't that many of them. There is nothing constitutionally required about any professional licensure system (well, maybe in the criminal defense arena) so the public can eliminate the guild any time it wants. Maybe we will, some day!
