CLI - Legal Profession COPY Flashcards
- Reputation of the judiciary is important because
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(1) Informational asymmetries—reputation is a heuristic to figure out how to react to judges and their decisions
- A judiciary with a poor reputation will be starved of resources and respect
- Decisions will be complied with only if they have a good reputation
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(2) If judiciary is reputable, it will attract individuals with high levels of human K
- High quality judiciary can improve the enforcement of property rights, contract, and investment—all necessary for economic growth
How are different legal systems are configured differently to address problems of information asymmetries?
- Collective reputation dominates when the legal system emphasizes social control
- Individual reputation dominates when judges are delegated with the task of lawmaking
What types of legal institutions lead to an emphasis on collective reputation for the judiciary?
- “Career system” that involves judges entering a bureaucracy at a young age
- Selected and promoted based on internal judicial assessments
- Individual judges are anonymous
- Lack of information available about any particular judge
- Decisions and proceedings mostly done via paper dossiers
- Less judicial discretion (RULES)
- De novo review of law AND facts
- Larger judiciary, increasing opportunities for horizontal internal monitoring
- Stricter disciplinary measures
What are some issues with legal institutions with collective reputaiton emphasized?
- Inability to dissent results in patchwork, esoteric opinions See France
- High monitoring costs to ensure lower court judges stay in line
What types of legal institutions are conducive to a focus on individual reputation for judges?
- “Recognition system” that appoints judges later in life after they have established themselves, diluting collective identity
- Fewer opportunities for promotion
- Appointment based on individual reputation
- Individual opinions, votes, and dissents are publicly available
- Opportunities for oral proceedings
- Greater judicial discretion (STANDARDS)
- De novo review of only law
- Many citations to other judges
- Smaller judiciary
- Loose disciplinary measures – federal judges can only be removed for “high crimes and misdemeanors”
How does the judiciary compare in the U.S. and Japan?
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United States
- Individual reputation is emphasized and indeed the reason behind appointment
- Good deal of discretion
- Appeals only issues of law de novo—permitting more experimentation at the trial level
- Limited appellate system means relatively small judiciary
- Many states elect judges – important to invest in reputation
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Japan
- Enter judiciary at a young age and spend career in a hierarchical structure
- Moved around the country so they are unable to be identified with any particular geography – punishing outlier judges with bad appointments
- Opinions are unsigned and dissenting opinions rare
- Legal positivist: there is a correct answer to every case
- Internal systems of uniformity like damage awards formulae
How is the legal profession different in civil law countries?
- Everyone is a specialist – low levels of individual reputation
- Little intra-profession moving
- Distinct legal cultures and expertise characterize the jobs within the profession
- Competition and jurisdiction problems between the jobs within the profession
- Whenever there are a bunch of discrete professions, there is going to be competition between them
- To counter these issues and unify the profession:
- Some countries have instituted a mandatory practical training period after law school
- Civil law country involves much more state control of the legal profession
Judges in civil law systems
- Less prestigious than academic and advocate
- Generally humbler class individuals looking for security
- Work is more routine – they don’t make law, just apply it
Public Prosecutors in Civil Law Countries
- Two duties
- (1) same as US: prosecute crimes
- (2) intervene in private disputes to give the proper interpretation of law
- Recent trend: judicialization of the profession – giving them the independence and security of tenure given to judges
Advocates in civil law countries
- Close to attorneys at law in the US: meet with clients to advise them + represent them in court
- Trend towards the American law firm model
notaries in civil law countries
- More prestigious than in the US
- Three duties
- (1) Public record keeping (quasipublic function)
- (2) Authenticate instruments
- (3) Draft legal instruments
- Quasi monopoly status – must be appointed to a certain district
academics in civil law countries
- Inheritors of the Roman tradition of jurisconsults
- Teaching is not AS emphasized
- Long, arduous process to become a legal professor
- In Latin America, academics have a second job due to the low pay
What’s the market failure in the US legal market?
- Low access to justice because too expensive
- Protectionism – monopoly powers in a jurisdiction
- Rationale for licensing arrangements
- Consumers cannot tell the effort from the output
- Fears of mass fraud and unethical behavior without licensing scheme
- Rationale for licensing arrangements
- Barriers to entry imply an undersupply
Whats the main issue causing the market failure of the legal profession in the US?
- Principal issue: Protectionist regulation by lawyers for lawyers
- Costly business model that law firms operate under
- Hourly billing foregoes the normal reduced costs of scale
- Paid legal help must come from those w/ JD = expensive degree (no way!)
- Legal service to public must be provided from firm that is owned, managed, and financed exclusively by lawyers
How are regulations for the legal profession diff in the UK?
- UK has multiple legal professions
- Regulates lawyers through the LSA
- Incorporates all the core values of ABA + promotes layers of competition
- Regulation strategy: designate particular instances of legal work as reserved activities and then require those activities to only be performed by authorized persons
- Exact opposite of the bar approach, which makes exceptions for legal work not subject to regulation