This is the final part of my discussion with Walter Olson. The first and second pieces are available.
Story by Joseph Ford Cotto
Libertarianism has seen better days.
A few years ago, certain political forecasters claimed that the future of America's center-right belongs to libertarians. Since the 2012 presidential election, however, protectionism surged -- not only in the GOP, but among Democratic ranks as well. Now, amid the age of Donald Trump, libertarianism's once-ascendant nature seems a distant memory.
"I fear that the classical liberal/libertarian idea and ideal will be seriously tarnished by the policies and politics of the Trump Administration," Dr. Richard Ebeling, one of our time's greatest Austrian School thinkers, recently told me.
He continued: "Virtually all of Trump’s proposed policies involve a continuation or an intensification of government involvement in social and economic life. He acts as the all-knowing government central planner when he calls in business executives and tells them where to invest and what products they should make to 'create jobs.' He undermines respect for and protection of essential civil liberties when he ridicules the freedom of the press and their way of reporting on his administration’s actions and his words."
Ebeling went on to state his worry "that with the assistance of the mainstream media the Trump Administration’s anti-freedom policies will tarnish the real case for a free society and a free market. That is, people who want lower taxes and fewer regulations on business will be identified as the people who also believe in torture, discrimination against immigrants, violations of civil liberties, and the instigation of trade wars because of aggressive nationalist attitudes.
Libertarianism is not simply a matter of electoral politics, though. Its qualities pertain to our legal system with no less force than what one might mull over in a voting booth.
"Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies and is known for his writing on the American legal system," Olson's biography at Cato reads. "His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book,The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” Active on social media, he is known as the founder and principal writer of what is generally considered the oldest blog on law as well as one of the most popular, Overlawyered.com. He has advised many public officials from the White House to town councils and in 2015 was named by Gov. Larry Hogan to be co-chair of the Maryland Redistricting Reform Commission, which issued its report recommendations later that year to acclaim across the state.
"Before joining Cato, Olson was a senior fellow at the Manhattan Institute and an editor at the magazine Regulation, then edited by future Supreme Court Justice Antonin Scalia. Olson’s more than 400 broadcast appearances include all the major networks, NPR, the BBC, The Diane Rehm Show, and Oprah."
Olson recently chatted with me about many topics relative to American jurisprudence. Some of our conversation is listed below.
Joseph Ford Cotto: What is the single largest, yet perhaps most unexpected, consequence of America's tort setup, spurred on by the exponential number of lawyers who reinforce it?
Walter Olson: Some of the biggest consequences, both in cost and in quality of life, of our current legal culture are in the workplace. Even as labor unions have declined in the private sector, the ways of getting sued, and the stakes, have multiplied: discrimination, wage and hour, leave and vacation policy, harassment, and on and on. I've written about how the tendency is for lawyers to urge HR departments into bureaucratic caution. In California, where an employer can get hit with a class action suit if it tolerates employees' working during a lunch break, the silly but inevitable result is that some employers make it a first-time firing offense to slit open an envelope or respond to a work email over one's break.
Cotto: Regarding criminal law, are the civil rights and liberties of Americans endangered in any real way by the high rate of lawyers?
Olson: Generally, in criminal law, private lawyers defend people's rights and liberties against the state. There are a myriad of problems with the criminal justice system -- one is that nearly all charges are resolved behind the scenes by plea bargaining, an opaque system prone to arbitrary use of power by the state -- but prosecutors and criminal defense lawyers combined make up small subsets of the ranks of lawyers overall.
Cotto: Consider how many folks are churned out of law schools every year. Keeping that in mind, should one wish to pursue a career in law, what would be the proper reason for this from a libertarian point of view?
Olson: Lawyers, in general -- even the ones who don't make a lot of money -- wield a lot of power. While they can inflict enormous grief on opponents, they can also can help get institutions and individuals out of deep trouble. They are natural insiders as well as natural sources of civic leadership. Any decision to go to professional school, however, needs to be based on a willingness to tackle the particular circumstances of the profession's work. Many legal jobs require spending a lot of time on work that is boring, deadline-driven, adversarial, or intensely detail-oriented. If all four of those sound off-putting to you, be careful.
Cotto: Some may argue that legal representation and profit should never be merged, as evinced by the state of American legal affairs and the great number of for-profit lawyers who -- generally speaking -- do not improve the situation. What is the libertarian take on this?
Olson: Lawyers naturally seek for their own economic betterment, whether we call that "profit" or not. Traditionally, both common law and civil law systems do try to insulate lawyers from certain types of financial involvement in the matters they handle, because of the ethical temptations otherwise opened up. For example, if we pay prosecutors a bonus per conviction, we find on the average that they are more likely to play hardball and step on defendants' rights in certain ways. Libertarians have a wide range of views of how to handle the issue of commercialization of legal practice -- I'm more skeptical of it than many, which is why I say I offer *one* libertarian view, not *the* libertarian view.