A piece in the ABA Journal Weekly Newsletter, relying on a BloombergBusiness.com news story, makes a fairly common claim in these recessionary days: there are too many lawyers in America. Boomberg writer Paul Barrett relies heavily on the fact that in 1950 there was one lawyer for every 709 Americans. Today that number is 257. Ergo, too many lawyers.
This is, of course, a stupid argument. (I sincerely hope Mr. Barrett did not learn his reasoning skills in law school) How many software engineers were there in 1950? Human resources professionals? Venture capitalists? Commercial airline pilots? The American legal system is has itself grown exponentially since 1950. The Warren Court had not yet required all criminal defendants to have lawyers. Tort law had not yet had the explosion of liability that came from abolishing privity, relying on stricxt liability, restricting defenses, and extending statutes of limtations. Six enormous federal departments did not exist (Health & Human Services, Housing & Urban Development, Transportation, Energy, Education, Homeland Security). There was no Equal Employment Opportunity Commission, Occupational Safety & Health Administration, Environmental Protection Agency, Office of Management and Budget, Consumer Product Safety Commission, Federal Housing Finance Agency, Federal Election Commission, National Aeronautics & Space Administration, National Endowment for the Arts, National Transportation Safety Administration, Securities Investor Protection Corporation, or Small Business Administration. There were no laws against racial discrimination, age discrimination, or sexual harrassment. Health, zoning, and safety regulations were rudimentary.
In other words, the legal system has changed nearly as much as the digital computer — which was also in a fairly primitive state in 1950. There is only one way in which we can say that there are “too many lawyers”: everyone who needs one has one and we still have some extras left over. In fact, as I learned when I tried to run my own fairly small businesses, there is a drastic shortage of lawyers who can advise ordinary people and small businesses. What we have is not too many lawyers, but too many lawyers with $200,000 in debt who want to work at Sullivan & Cromwell.
(One could, of course, make the case that we have too much law, and therefore we make things simpler so we don’t need as many lawyers. But I don’t that’s the point the writers are making.)
Our current system does not produce too many lawyers, it produces too many lawyers whom very few people can afford to hire. There’s a big difference between the two.