This is the second of three articles spanning my discussion with Walter Olson. Read the first piece here.
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: Contrary to stereotypes, lawyers do not, as a rule, earn Boston Legal-like salaries nowadays. Is this simply on account of the market correcting itself, or does something more complicated enter consideration?
Walter Olson: It has long been the case that only a small fraction of lawyers earn rich salaries. Making a top BigLaw partnership is not typical for lawyers handling business matters, nor is acquiring a racing yacht or Gulfstream jet typical for lawyers handling plaintiff's personal injury matters.
Some sectors of law resemble Wall Street and real estate in salary profile, with a few players making enormous sums and many others doing just okay. The boom in law school enrollment until 10 or so years ago -- followed by a severe bust -- led to the sort of challenges you would expect for rank and file lawyers. Meanwhile, the elite layer of highest earners faces cycles of its own (in dealmaking and mass tort settlements, for example) that can be drastic as cycles go, but are not as closely geared to the supply of legal talent.
Cotto: Absent tort reform, it seems likely that America will produce an ever-growing amount of lawyers, no shortage of whom hope to strike it rich litigating, principally, against businesses. How does this situation relate to consumers' economic freedom?
Olson: Even though enrollment in law schools fell sharply during the recession, the overall number of lawyers continues to rise because even the smaller classes of new grads tend to outnumber the older cohort taking retirement. Supply does respond in part to demand, however, and with reform of legal methods and processes -- including, but by no means limited to, tort reform -- that demand can be curbed.
For example, the arrival of self-driving cars is likely to make obsolete existing ways of pursuing road accident claims, which could reduce demand significantly. Access to online forms and artificial intelligence could replace -- is in fact replacing -- many relatively routine applications of lawyers' time.
Cotto: Our nation's lawsuit-happy environment has resulted in doctors taking extraordinary measures to avoid legal troubles, which in turn escalates the already high cost of running a practice. Does the present tort scenario -- exacerbated by a burgeoning pool of lawyers -- risk lives?
Olson: Despite vehement denials from some of our lawyer friends that defensive medicine is a real thing, I have little doubt that it is quite real. When it is made easier to sue psychiatrists after a patient attempts suicide, for example, more psychiatrists will turn away clients who report suicidal thoughts, and those clients may or may not succeed in finding help elsewhere.
I'm not one who sees things getting only and ever worse -- malpractice payouts have fallen, for example, from previous highs, and courts and lawmakers have corrected many of the excesses of 25 years ago. But if we pay much more on health care than other nations without achieving better outcomes, yes, this is one reason.