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Do Judges Systematically Favor the Interests of the Legal Profession?

45 Pages Posted: 3 Apr 2007 Last revised: 23 Oct 2007

Benjamin H. Barton

University of Tennessee College of Law

Date Written: October 2007

Abstract

This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

Keywords: judges, professional responsibility, legal malpractice, lawyers

JEL Classification: K4, K41

Suggested Citation

Barton, Benjamin H., Do Judges Systematically Favor the Interests of the Legal Profession? (October 2007). University of Tennessee Legal Studies Research Paper No. 1. Available at SSRN: https://ssrn.com/abstract=976478 or http://dx.doi.org/10.2139/ssrn.976478

Benjamin H. Barton (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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