The Legal Monopoly
45 Pages Posted: 15 Mar 2018 Last revised: 8 Oct 2018
Date Written: March 12, 2018
Lawyers enjoy an exclusive monopoly over their craft, one unlike any profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed.
Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition and free markets for the public good. The legal profession, however, largely avoids antitrust scrutiny because the courts fall into a special exception known as the ‘state action doctrine,’ permitting anticompetitive actions by governmental bodies to engage in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying this exception—that the regulators are not themselves members of the regulated profession or industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase access to affordable legal services while preserving professionalism and client protection.
Keywords: antitrust, legal profession, first amendment, legal ethics
JEL Classification: K4, K21
Suggested Citation: Suggested Citation