WHEN BENCH AND BAR GET TOO COZY:
Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had â€œa serious and secret bias.â€ Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.
Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.
But Judge Jacobsâ€™s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.
And there is, of course, the pleasure of power, particularly in cases involving the great issues of the day.
â€œJudges love these kinds of cases,â€ said Judge Jacobs, whose speech was published in The Fordham Law Review in May. â€œPublic interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.â€
There are costs here, too, he said, including â€œthe displacement of legislative and executive powerâ€ and â€œthe subordination of other disciplines and professions.â€
Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. â€œWe smugly congratulate ourselves,â€ Judge Jacobs said, â€œon expanding what we are pleased to call the rule of law.â€
It’s Times Select, alas, so you can’t read the rest unless you subscribe. But the piece mentions this article on the subject by my colleague Ben Barton, and you can download the whole thing for free if you’re interested.