Thursday, July 4, 2019

Interview: Walter Olson explains whether having more lawyers in America is good for liberty's sake

Editor's note: This interview was originally published in April 2017.

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, 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: Since libertarianism is -- by its very definition -- liberty-oriented, some might expect libertarians to support the presence of as many lawyers as possible in society; specifically so the civil rights and liberties of citizens might be safeguarded. Do you have anything to say about this?

Walter Olson: Lawyers can add to liberty by their actions, or they can subtract from it. Lawyers are delegated certain coercive powers to initiate force through the court system -- they can drag an unwilling adversary into years of ruinous litigation, subpoena the participation of innocent third parties, launch accusations of terrible misconduct against fellow citizens that get inscribed in permanent public records, trash parties' privacy in a wide variety of ways, and so forth. These powers are coercive and potentially destructive in a way that should grab libertarians' attention. Some lawyers use them for good, some for ill. 

Is adding lawyers a good prescription for expanding liberty? That is obviously contingent in part on the time and place of the society one is talking about. Judges are also crucial to liberty, but one would not assume that the more of them there are, the freer a society necessarily is.

Cotto: The average American cannot afford a top-tier legal defense, and therefore is placed at a disadvantage relative to wealthier individuals. Many would call this a structural inequality of sorts. Given the soaring proportion of lawyers in our nation, what is the libertarian approach to such a matter?

Olson: Having the government pour money into employing lawyers in the name of helping the less affluent is likely to work about as well as our system of pouring subsidies into $60,000/year college bills and $150,000 hospital stays. Worse, actually, because when the government provides free lawyers to, say, tenants, landlords wind up paying *their* lawyers more too, a tit-for-tat dynamic of escalation with no exact parallel in universities or medicine. 

My recommendation is to look at similar advanced nations that have markedly lower legal costs than the U.S. to see how their systems work to contain legal costs. Canada, Scandinavia, and many other European countries achieve high-quality justice at generally a much lower cost than we. We have much to learn from them.   

Cotto: Some might say that having a glut of lawyers is good for the consumer as a buyer's market exists for legal services. What is your perspective on this?

Olson: For particular services, especially those like will-drafting that are not contentious, there is surely truth in this. On the other hand, when underemployed law grads wander around filing ADA accessibility cases or soliciting fender-bender road cases for lack of better things to do, the ultimate costs get passed on pretty quickly to consumers.