Democracy, Populism, and the Tyranny of the Experts, Part III

The first thing we do, let’s kill all the lawyers. (Shakespeare, Henry VI, Part II, identifying the first step in building a better society)

When I was growing up, my family not only never consulted a lawyer, I never laid eyes on one. Lawyers were completely irrelevant to the lives of almost everyone. Then, suddenly, I was a lawyer and for the last 40 years have been part of the problem.

These days, you can’t survive for a week without seeking the advice of a legal expert. Soon enough that will be down to “a day,” and then to “an hour.” In some cases that advice can mean the difference between freedom and imprisonment, in rare cases between life and death. Almost always, it means the difference between doing something right and screwing up very badly.

And nobody—nobody—does “expert” like the lawyers. Less than one quarter of Americans have a college degree, but of course a college degree is de rigueur for aspiring lawyers—and only a modest beginning. You might suppose that, having been in school for 21 of your 25 years, you would be ready to start telling people what to do (regarding legal matters), but no!

You next have to spend three long, grueling years in law school and graduate. But even that is only a modest start. You next have to pass a state bar exam. Those exams arose in the days when most aspiring lawyers didn’t attend law school but, instead, “read the law,” that is, apprenticed under more senior lawyers. When the senior lawyers decided the apprentices were ready, the law readers became lawyers. This system was rife with possibilities for abuse and shortcutting, and so bar examinations were instituted to be certain the apprentice actually knew something about the law.

Today, bar exams are an anachronism. You can read the law in only four states and in 2014 a mere 60 out of the 84,000 newly minted lawyers entered the profession by reading law. After 27 years of schooling, including three years of law school, we can safely assume that people with Juris Doctor degrees know something about the law. So why do young lawyers have to pay large sums of money, sit through boring bar review courses, then take two or three-day bar examinations covering subjects they will never again encounter in their entire careers? Credentialing, of course! You have now acquired a credential that less than ½ of 1% of Americans possess. Talk about an elite!

But, really, you’re still not ready to be an expert, because almost all American lawyers have to survive an apprenticeship process. Of course, lawyers are much too august to call themselves “apprentices,” as though they were plumbers. No, young lawyers are called “associates,” and their role is to perform long hours of grunt work for five to ten years (depending on the city, the firm and the specialty) before, finally, at the age of 30 or 35, they become partners in a law firm and are really, really, legal experts.

Not only do lawyers spend every minute of every day telling non-legal laypersons what to do, their influence extends far beyond the giving of legal advice. Almost every judge in America is a lawyer, and when a judge tells you what to do, you do it or else. Moreover, a huge percentage our elected legislators at the Federal, state and local level are lawyers—including, by the way, 57% of the current United States Senate—so all those pesky laws and regulations we despise can also be laid mainly at the feet of legal experts.

When I was a young lawyer, still wet behind the ears and doing my long, lonely apprenticeship—excuse me, associateship—at a huge corporate law firm, I received a call one day from the CEO of one of the firm’s clients. His company grew mushrooms in underground limestone caves. “I have a great company here,” he said, “and I want to sell all my employees’ stock in it. You see any problem with that?” It was a wonderful idea, of course, and one that only a lawyer could hate.

I chuckled into the phone. “Oh, you silly, naïve fellow!” I said to the CEO. “Have you never heard of the Securities Act of 1933? The Securities Exchange Act of 1935? The Pennsylvania Securities Act? Does ‘Securities and Exchange Commission’ ring a bell? Have you never read SEC v. W.J. Howey & Co., a famous United States Supreme Court decision? No? Well, fortunately for you, you’ve come to the right place. For a modest fee of $150,000 I will tell you what to do in this matter. Otherwise, you will be in jail for securities fraud before the month is out.”

And that was only the beginning. As I worked my way through the disclosures required by the registration statement I discovered many problems at the company. The only one I remember today is that the firm hadn’t issued steel-toed shoes to its employees, as required for people who work underground by the US Occupational Safety & Health Administration. In case, I suppose, you should drop a mushroom on your foot. By the time this legal expert was finished, the company was nearly bankrupt trying to comply with all my expert advice.

Having experts around is great, if you happen to be the expert. I was a 28-year-old kid, and if I’d worked directly for that CEO inside his company I’d have been shoveling horse manure. Instead, I was ordering the poor CEO around like I was the Master and he was the Slave.

Next week I’ll confess to being part of the problem in yet another annoying “expert” area: finance.

Next up: Democracy, Populism, and the Tyranny of the Experts, Part IV