October 25, 2011 3:22PM

Clifford Winston on Lawyer Licensure

Brookings senior fellow Clifford Winston is in today’s New York Times arguing the position (as does his new book with Robert Crandall) that state licensing rules governing who can enter the legal profession are “barriers to entry” that should simply be “done away with.” As I observed last month as part of a symposium on the idea at Truth on the Market, I wish Winston had done more to develop the distinction between lawyers’ everyday role in, say, drafting wills and closing real estate transactions (for which the de‐​licensing approach he favors might indeed hold out hope of wider choice and reduced cost for consumers) and lawyers’ powers to pursue litigation, subpoenas, and other compulsory process against unwilling opponents and third parties. The latter is a type of coercive, indeed quasi‐​governmental, weaponry and it is by no means obvious that it should be delegated to all comers. As I argued last month:

The coercive powers wielded by private lawyers [when they wear their litigators’ hats] are more akin to the powers wielded by prosecutors and other government officials than to the powers wielded by, say, optometrists or dentists.…

The way forward might be to split the tasks of a lawyer in two, moving to deregulate the advisory and document‐​preparation functions (which could indeed be a way of saving consumers large sums) while continuing to apply appropriate scrutiny to those in the profession who presume to wield coercive litigation powers. Although the British separation of highly regulated barristers from less highly regulated solicitors does not precisely track this distinction, it is worth keeping in mind as a possible model for a division between an “outer” legal profession whose operation might be entrusted to general business principles and an “inner” group of professionals of whom more is expected, as we expect more ethically and legally from judges themselves, public prosecutors, and others cloaked in public authority.

My full symposium contribution is here.