Harvard University Professor Niall Ferguson, a noted
economic and financial historian, contends that the rule of law has been
supplanted by the rule of lawyers within the United States. He cites Dodd-Frank as an example of legislation
that constitutes a lawyer employment scheme.
Rather than protecting businesses and individuals through
the rule of law, Professor Ferguson contends that such laws create an unduly
burdensome regulatory environment. Along with other factors, Ferguson claims
that this places the United States on a path of decline reminiscent of what
happened to Great Britain post-World War II.
Taking potshots at the legal profession is nothing new. Yet
Professor Ferguson mistakenly implies that attorneys are responsible for
legislation he finds onerous.
This ignores the fact that only about 1/3 of Congressional
members are attorneys and those numbers are declining as just 1/4 of new
members are lawyers. Even if lawyers voted lockstep for a piece of legislation,
the bill could not pass without the assistance of Congressional colleagues who
have never practiced law.
Moreover, those attorneys who do serve on Capitol Hill hold
divergent views on legal issues based upon ideology, party affiliation, and the
areas of law they practiced prior to being elected. With such in mind, any legislation that could
possibly threaten the rule of law needs a majority of non-lawyers to vote for
it to ensure passage.
There are no smoke-filled rooms in Congress where lawyers
meet to create employment opportunities for their colleagues in the private sector
by passing legislation. Positive or adverse effects on the practice of law are
coincidental rather than by design.
Although there is evidence to support claims that the rule
of law has deteriorated within the United States and other nations as
regulatory burdens have increased, blaming the legal profession is misplaced.
When Dick the Butcher, a character in William Shakespeare's Henry VI Part 2, suggests that "[t]he
first thing we do, let's kill all the lawyers," that recommendation was made as
part of a plot to overthrow the government. For even the Bard of Avon
recognized that the rule of law depends upon the legal profession as its
Ferguson: The US Is Beset By the 'Rule of Lawyers', Business Insider (May
America Becoming an Anti-Risk Welfare State?, Barrons (Apr. 28, 2012)