Law Commons^™

Deregulation And The Lawyers' Cartel, Nuno Garoupa, Milan Markovic

Faculty Scholarship

At one time, the legal profession largely regulated itself. However, based on the economic notion that increased competition would benefit consumers, jurisdictions have deregulated their legal markets by easing rules relating to attorney advertising, fees, and, most recently, nonlawyer ownership of law firms. Yet, despite reformers’ high expectations, legal markets today resemble those of previous decades, and most legal services continue to be delivered by traditional law firms. How to account for this seeming inertia?

We argue that the competition paradigm is theoretically flawed because it fails to fully account for market failures relating to asymmetric information, imperfect information, and …

Protecting The Guild Or Protecting The Public? Bar Exams And The Diploma Privilege, Milan Markovic

Faculty Scholarship

The bar examination has long loomed over legal education. Although many states formerly admitted law school graduates into legal practice via the diploma privilege, Wisconsin is the only state that recognizes the privilege today. The bar examination is so central to the attorney admissions process that all but a handful of jurisdictions required it amidst a pandemic that turned bar exam administration into a life-or-death matter.

This Article analyzes the diploma privilege from a historical and empirical perspective. Whereas courts and regulators maintain that bar examinations screen out incompetent practitioners, the legal profession formerly placed little emphasis on bar examinations …

Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney

Faculty Scholarship

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to …

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Gender Diversity In The Patent Bar, Saurabh Vishnubhakat

Faculty Scholarship

This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably the provision …

Who Wants To Be A Muggle? The Diminished Legitimacy Of Law As Magic, Mark Edwin Burge

Faculty Scholarship

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal …

Taking Empirical Research Seriously, Susan Saab Fortney

Faculty Scholarship

This essay considers how empirical research on the legal profession can bridge the divide between theory, social science, and the ethical practice of law. After providing background information on the growing field of empirical legal research, Part I of this essay focuses on developments in empirical legal research on lawyering. Part II discusses how collaboration with practitioners and other stakeholders can help researchers address challenges related to accessing data. Once data are obtained, Part III suggests how dissemination and sharing of research can link the academy and practicing lawyers. The conclusion urges a collaborative course of action for legal ethics …

Tales Of Two Regimes For Regulating Limited Liability Law Firms In The Us And Australia: Client Protection And Risk Management Lessons, Susan Saab Fortney

Faculty Scholarship

This essay contrasts the regimes that allow limited liability partnerships in the US and fully incorporated legal practices in Australia. The essay argues that Australia has taken advantage of an opportunity to develop innovative and necessary regulation of law firm ethical infrastructure with the introduction of incorporated legal practices, but the United States has not yet adequately addressed the consumer and ethical risks of limited liability partnerships. This essay raises the issue of whether Australia’s requirement that incorporated law firms should implement “appropriate management systems” to ensure ethical conduct is a model that could fruitfully be applied to all law …