Lawyered Up

Abstract:     
This Book Review Essay uses the prism of a popular and much-discussed recent critique of law in America, Phillip K. Howard's Life Without Lawyers, to examine the basis for anti-lawyer sentiment, and formulates a response that might potentially move past the current debate about the proper role and social "weight" of law, an argument which may be ultimately cultural in nature. Given the limitations of Howard’s book, the article assembles empirical information not available elsewhere on number of lawyers in other countries, compared to the 1.1 million in the United States, and the comparative role of legal services in the common-law economies. This turns out to be necessary, as previous figures are quite outdated, reporting for instance that America has a lawyer per-person proportion three times that of any other country: “the American difference” is real, but about half that rate.

In part as a justification for giving Howard's critical project a more serious treatment than it has often received in the legal academy, the article begins by identifying Life Without Lawyers as in certain ways more sophisticated than a straightforward advocacy piece for tort reform. Howard is self-consciously following the line of contemporary sociological theory that shows a decline of “social capital” in America, and he plausibly describes the growth of lawyers and “legalism” as a consequence of this broad trend. The article helps fill in a number of gaps in the data on these topics, and describes how the demand for lawyers underwent a rapid expansion between 1970-1990, but now tracks the Gross Domestic Product (prior to 1970 it tracked population), suggesting the emergence of a new but stable relationship between legal activity and the economy as a whole. This is the relationship Howard wants to reform, or as he says, revolutionize.

The article closes by examining the unlikely prospects for Howard's legislative plan of reform, and suggests instead some different options for reducing the role of law, if only for part of the population. It develops a hypothesis that Howard and other critics of expanded legalism are representative of an important cultural segment of America, identified by Yale’s Cultural Cognition Project as having “individualistic” views of risk and responsibility. As an alternative to reducing of law for society at large, it sketches a technologically-enabled contractual “opt-out” model that can achieve “life without (as many) lawyers” – but only for those that really want that result.

Keywords: social capital, law and culture, legal services, cultural cognition, tort reform

JEL Classifications: K40, L84

Working Paper Series