Producer's Notes - Winston, 7/11

Producer's Notes - Winston, 7/11

General notes:

Announce podcast subscribe at the middle of the show (everyone asks for 5-star reviews, but I think you should just ask for honest feedback)
Time to start thinking about a new libertarian minute! Let me know when you have time.
Winston was a guest blogger at the Volokh Conspiracy - on licensing he is very libertarian. On other issues, it's hard to tell but he seems to still put a great deal of faith in the government/ABA improving the efficiency of the legal industry.


Clifford Winston, a Senior Fellow in the Brookings Institution’s Economic Studies program, is an applied microeconomist who specializes in the analysis of industrial organization, regulation, and transportation. Winston has also been co-editor of the annual microeconomics edition of Brookings Papers on Economic Activity. Prior to his fellowship at Brookings, he was an Associate Professor in the Transportation Systems Division of the Massachusetts Institute of Technology's Department of Civil Engineering. He is the author of numerous books and articles. Winston has published First Thing We Do, Let’s Deregulate All the Lawyers, with Robert Crandall and Vikram Maheshri (Brookings, 2011); Last Exit: Privatization and Deregulation of the U.S. Transportation System (Brookings, 2010), and most recently, Trouble at the Bar.

Dr. Winston received his A.B. in economics from the University of California at Berkeley in 1974, his M.Sc. from the London School of Economics in 1975, and his Ph.D. in economics from U.C. Berkeley in 1979.

Senior Fellow in the Brookings Institution’s Economic Studies program



Occupational licensing is often deployed by industries to limit job competition, and it is no different with the American Bar Association. This Sunday, I'm joined by Clifford Winston, senior fellow at Brookings Institution's Economic Studies program, microeconomist, and author of Trouble at the Bar.

Together, we will take a close look at the adverse effects that the ABA regulation has on the legal market and the economy as a whole – including the increase in cost, reduction in quality, and the limit of access to, legal services for the general population. Clifford argues that by deregulating the legal industry, there would be a mutual benefit to both lawyers, prospective lawyers, and society in general.


Trouble at the Bar - Highlighted.pdf138322.6KB
Lawyers’ performance in the public and private sectors could be improved substantially by deregulating the legal profession to spur competition and innovation in the private sector and to increase the quality and preparation of lawyers who occupy policymaking positions in the public sector.

See document above for highlights


Much of the book is economic regressions and tables that you can easily gloss over. Chapters 8 & 9 are the most relevant to the licensing argument

The adverse effects of the legal profession's self-regulation, which raises the cost of legal education, decreases the supply of lawyers, and limits the public's access to justice to the point where, in general, only certified lawyers can execute even simple contracts. At the same time, barriers to entry that limit competition create a closed environment that inhibits valid approaches to analyzing and solving legal problems that are at the heart of effective public policy.

Deregulating the legal profession, the authors argue, would allow more people to provide a variety of legal services without jeopardizing their quality, reduce the cost of those services, spur competition and innovation in the private sector, and increase the quality of lawyers who pursue careers in the public sector.

Main Points

  1. Law school has become overrated - the monetary reward from an investment in time and money to obtain a law degree may have declined markedly since the Great Recession, and the value proposition of attending a low-tier law school has become increasingly difficult to justify.
    • The private and social benefits of a legal education may have been reduced and the private and social costs increased by the excessive time and out-of-pocket costs of attending law school. There are now limited curriculum for students and job opportunities for graduates, and the quality of law school faculty, as suggested by their research accomplishments, is in question.
    • There are too many law graduates and not enough legal jobs.
    • The quality of law students has declined.
    • The available evidence, as reflected in lower LSAT scores, lower bar passage rates, and the greater difficulty of obtaining employment in jobs that require a J.D., suggests that the quality of admitted law students has declined, especially among those students attending lower-tier law schools.
  2. Experience at a law firm does not equate to quality government service - We argue that those lawyers are not imbued by their law firm experiences with the merits of efficient and compassionate public policy.
  3. Government work does not pay -The earnings penalty is large, consistent with evidence that the government is not able to attract and retain lawyers of the same ability, as measured by law school attendance and grades, as the private sector can attract and retain. We suggest that this allocation of legal talent may adversely affect government performance.
  4. Government legal work is inefficient - The effectiveness of government lawyers may be reduced by the government’s organizational and workplace constraints.

Winston's Guest Blogging at Volokh

What pervades Winston's blogging is the notion that lawyers, with their rigid focus on laws and regulations, and the language of the constitution, lose sight of the big picture – what is for an economist, basically efficiency. In this pursuit of utilitarianism, Winston argues for deregulating the legal field – both to enable innovation, but ultimately to change the legal market and the very way in which lawyers think about the law and precedent. In short, he appears somewhat hostile to the notion of stare decisis in a similar way that a progressive on the Supreme Court would be.
The idea is that occupational licensing is necessary to ensure a minimum standard of legal services because consumers cannot distinguish between competent and incompetent lawyers, who will take advantage of them. However, advances in information technology have spurred new institutions that provide considerable information about lawyers' qualifications, disciplinary records, and assessments by clients. Such information, which is used extensively by consumers to inform them about legal and many other services, would be even more prevalent in a fully deregulated market.
Eliminating requirements to attend an ABA-accredited law school would allow legal education to evolve and respond to the diverse interests of potential new legal service providers who could help the public without graduating from a costly ABA-accredited law school. Alternative educational institutions would offer new programs, including but not limited to specialized vocational and online courses of study that could be completed in less than a year. Those could greatly expand the provision of effective, low-cost civil legal services.

Here, he suggests that ideological conflict in the court should be addressed but not via court packing. Instead, the courts should be more receptive to academic experts' arguments on what is effective public policy – prioritizing economic "efficiency" for example, at the expense of focusing on the constitution itself, a la Scalia.

Trouble at the Bar argues that the pervasive role of lawyers in all levels of government has had an adverse effect on the efficacy of public policies in general because lawyers' training, career development, and policy perspectives have oc­curred in an inefficient environment shaped by regulations that reduce competition and innovation. In addition, legal training and practice does not encourage policymakers to acknowledge and correct policy inefficiencies by subjecting previous decisions to rigorous retrospective cost-benefit analyses and by subjecting new decisions to rigorous prospective cost-benefit analyses.
All aspects of the profession would benefit if the profession supported deregulation and removed its straitjacket to engage freely with new and eager participants.
Providers of legal services would be much more heterogeneous and include highly specialized individuals with vocational and online training, an undergraduate law degree, a law degree from an accelerated or three-year law school program, and a degree from a well-designed multidisciplinary program in law and another discipline. Society would gain because the expanded workforce would cater to a much broader range of consumers who would be able to afford some form of legal representation that is of value. In addition, law firms are likely to benefit by hiring people with less extensive and less costly education to help provide certain services at lower cost and, in some cases, by attracting more effective managers from the business world.

Legal education is likely to offer a much broader range of courses and programs to educate the more heterogeneous legal services industry. More interdisciplinary academic programs means that more faculty will need to be trained in both law and another discipline.

Trouble at the Bar concludes that the legal industry's success is illusionary and that it could be enormously successful if it were deregulated by helping the nation to achieve greater fairness and efficiency far more than the economics profession could ever hope to do. Given that a lawyer coined the phrase Trillion Dollar Economists to characterize the social value of the economics profession's ideas that have shaped the world, imagine what the social value of the legal profession's contributions could turn out to be.

Videos & Podcasts

Restrictions on the supply of lawyers and increases in demand via government regulation artificially boost lawyers' salaries. Deregulation of the supply (by eliminating licensing) would lower price and encourage innovation.
Deregulating the practice of law would drastically increase competition along a spectrum of legal services as the supply of legal-service providers rise as regulations drop; for example, individuals who might require someone with just a background understanding of legal procedures would find approaching a “legal consultant” to be much less expensive than consulting with a bar-licensed lawyer.

Related Shows:


Buy the book