Anyone Can 'Think Like a Lawyer': How the Lawyers' Monopoly on Legal Understanding Undermines Democracy and the Rule of Law in the United States
26 Pages Posted: 17 May 2014
Date Written: May 1, 2014
Though a person needs a threshold understanding of the law to obey it or enjoy its protection, lawyers in the United States enjoy a near monopoly on knowledge of what the law is and how it works. Widespread ignorance of the law robs it of deterrent effect, deprives those whose rights have been violated of recourse, and undermines deliberative democracy. This Article argues that the low level of legal knowledge in the United States is fundamentally at odds with the ideal of the rule of law and further contemplates a “legal empowerment alternative” for the United States, inspired by the approach Stephen Golub has argued should supplant our lawyer-focused efforts to build democracies abroad.
In the U.S. context, legal empowerment would not only require expanded access to legal services, but also a significant commitment to increasing the basic knowledge of nonlawyers. The American legal profession has an opportunity, if not an obligation, to work to counteract the detrimental effects of both the monopoly on legal services and the near monopoly on legal knowledge by promoting and providing basic legal education for the laypeople that the law binds and protects. Laypeople need to be empowered to think more like lawyers; but for this to happen, lawyers will need to “think less like lawyers and more like agents of social change.”
Part I of this Article argues that failures of the dominant “lawyer-centered” attempts of U.S. legal reformers to build democracies and the rule of law abroad — and the strategies developed to address those failures — should inform efforts to comport with the rule of law ideal at home. Particularly in a legal system as complex as the United States, the rule of law would require basic legal knowledge and literacy among the public. Part II examines the public misperception of lawyers as general experts with exclusive access to legal knowledge and argues that laypeople need a better understanding of some of the limitations and peculiarities of the lawyer’s work in order to understand the legal system, view the law as legitimate, and participate in its reform. Part III examines public ignorance of basic legal principles through an example of battery in tort and criminal law: the recent rash of incidents of young people taking and distributing photographs of sexual batteries they do not recognize as crimes indicates widespread ignorance of the law, which seriously undermines deterrence and deprives victims of recourse. Part IV first argues that the ABA’s domestic access to justice programs focused on improving access to counsel and mandating civics education should include efforts to empower the public with basic legal knowledge and next considers some approaches to doing so.
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