Thursday, October 17, 2013
In a recent article, Russell Pearce and Sinna Nasseri argue for low barriers. The title of their article explains why: The Virtue of Low Barriers to Becoming a Lawyer: Promoting Liberal and Democratic Values, 19 International Journal of the Legal Profession 357 (2012). Here is the abstract.
This article offers a new perspective on how to determine whether barriers to practicing law are appropriate. It identifies a connection between those barriers and the role of legal services providers (‘lawyers’) in permitting individuals to obtain their basic political and economic rights in a liberal democracy. Democratic values require making legal services as equally available as possible to all citizens, while liberal values dictate that each individual has access in order to enforce human rights, compete in a market economy, and engage in a legal system grounded in the rule of law.
Liberal and democratic values therefore require the lowest barriers to becoming a lawyer, consistent with the minimum requirements of competence and the recognition that the level of competence required will vary according to the type of legal services provided and the segment of the market served. Any contrary regulatory approach requires strong empirical support to overcome the presumption of low barriers that liberal and democratic values create.
Accordingly, the article rejects as unpersuasive arguments for high barriers based on promoting the public good, avoiding rent-seeking, protecting consumers, advancing judicial efficiency, redressing lawyer misconduct, and preserving lawyers’ high incomes.
The question, of course, is how low?
Here is the SSRN link.