Do We Need Lawyers?

Dr. Daniel Mitchell's fascinating blog International Liberty had an article today on the problem of the self-serving legal profession. Among other things, Professor Mitchell writes,

There are also two comments, by 'Mack' and 'Paul' that I believe hit the nail on the head. Lawyers make laws for their own self-interest and the Courts, which are of course composed entirely of lawyers, interpret laws so as to benefit their own profession. I was having lunch today and a friend made the comment that lawyers don't know right from wrong and don't really care either - they only care what the loopholes in the law as regards any given case allow them to do.

I agree that lawyers should not be allowed to serve at any level of government. But I would go one step further. The Supreme Court needs to lose its designated status as the sole arbiter of what the Constitution does or does not mean. In short, if the Court says one thing and the President and Congress disagree, then the Court's opinion is rendered moot. In short, any two branches of government should be able to over-ride the third. The three branches are equal - the Court is not superior to Congress according to the Constitution. And it is also time to stop looking at Supreme Court case law. The only law that matters is what the plain text of the Constitution and those treaties signed (and ratified) by the United States. Case law is made to be overturned - especially when it conflicts with the clear language of the Constitution (yes, I'm talking about Kelo, among many, many other instances of judicial over-reach).

In the end, lawyers are simply another special interest group. Are they a necessary evil? I'm actually not convinced of that. I think that if laws were written by people with common sense, then a lot of the difficulty in the law would vanish and the need for lawyers would lessen as well. Lawyers exist to make the law difficult to understand. if it were in plain English, as the Constitution is, then why would we need lawyers at all? The answer is, we probably wouldn't. And this is a state of affairs much to be desired.

Is the SEC over-lawyered?

Well, Harry Markopolos certainly thinks so. As reported by Gordon Smith at The Conglomerate blog, Markopolos (who blew the whistle on Madoff) says in an interview with Deborah Solomon,

Solomon: Are you saying the S.E.C. under Schapiro is about to catch fraud on Wall Street?
Markopolos: She has the wrong staff. They’re a bunch of idiots there.

Solomon: What do you mean?
Markopolos: The five commissioners of the S.E.C. are securities lawyers. Securities lawyers never understand finance. They don’t have the math background. If you can’t do math and if you can’t take apart the investment products of the 21st century backward and forward and put them together in your sleep, you’ll never find the frauds on Wall Street.

Solomon: So why doesn’t the S.E.C. hire finance people? Why don’t they hire you?
Markopolos: They’re overlawyered. They’re poisoned by lawyers.

Smith has a possible solution - hire some financial experts! He writes,

We now require at least one member of the audit committee of a public company to be a "financial expert," but where are the financial experts at the SEC? Maybe bolstering the investigative staff with forensic accountants would be sufficient, but if the leadership sets the tone for the agency, wouldn't the appointment of commissioners with experience in forensic accounting be worth exploring?

Makes sense to me. Most lawyers have little expertise or real understanding of most of the fields they litigate. Kind of like....journalists!

Of course this is the government we are talking about. So if something actually makes sense, there is probably very little chance the lawyers who make up large sectors of the government will actually do anything constructive. That would reduce their opportunities for bribery and graft, after all! Hat tip to Glenn Reynolds.

Thoughts on the FDA

I had an interesting discussion with a colleague the other day about the efficacy (or lack thereof) of the Food and Drug Administration (FDA). he claimed that they do not perform the necessary checking of new products, thus producing products whose negative side effects far outweigh the benefits they supposedly produce. My counter-argument, also against the FDA, was based on the idea that a panel of government bureaucrats could do a better job determining what is or is not good for society than consumers as a group, seeing as how no regulation can guarantee to eliminate all bad results (name one that has. Can you? I cannot.)

However, I read a fascinating post today on the FDA over at Fight Aging. The main thrust was to point out that the the FDA, like most regulatory bodies, is not in the business of enabling progress. Quite the opposite, in fact. Author "Reason" writes,

There is no open marketplace for medical technology in the developed world, however. Instead, we see a very different set of incentives dominating the state of research and development. Regulatory bodies like the FDA have every incentive to stop the release of new medicine: the government employees involved suffer far more from bad press for an approved medical technology than they do from the largely unexamined consequences of heavy regulation. These consequences go far beyond the obvious and announced disapproval of specific medical technologies: the far greater cost lies in all the research, innovation and development that was never undertaken because regulatory burdens ensure there would be no profit for the developer. Personal gain for the regulator is thus to destroy the gains of people they will never meet, the exact opposite of what occurs in an open marketplace.

I myself abhor the effects of the HMOs and the vast regulatory and legal stranglehold that government has put on health care. if government and lawyers would simply allow the medical market to work. I believe that we would be surprised at how fast our medical technology and mastery advanced. But of course, that would eliminate the massive paydays for imagined malpractice suits, and the chances for government functionaries to flex their power without worrying about consequences.

As we approach a Presidential election in which at least two of the possible candidates (Barack Obama and Hillary Clinton) want to hand over control of our health to the same functionaries who have managed to blunt medical progress for the past twenty years, it is something to consider. As for me, I want less government interference, not more. And the sooner we can get the lawyers out of medicine, the better off we all will be. Hat tip to Glenn Reynolds