Overlawyered at the SEC?

Over at Conglomerate, Gordon Smith comments on this NYT interview with a would-be whistleblower who says that the SEC is overlawyered -- that lawyers lack the technical competence in finance that is essential for sound regulation.  The post ties together two themes you often hear these days: that we over rely upon lawyers to make decisions that ought to be left to technical experts and that the law school of the future is the interdisciplinary school that graduates lawyers with deep knowledge of non-law field.

Comments

[Law school grad]

If future lawyers need deep knowledge of the non-law field, perhaps they should get that knowledge from a degree in that field, rather than from law school. Perhaps the legal education of the future might consist of a advanced undergrad or grad degree in a particular field where the attorney will later practice, followed by a shorter legal education.

There were a few law school classes I took where some of the professors had made conclusions based on erroneous technical or scientific information. Had they had a background in those areas, they likely would not have made those mistakes. For example, one law professor recently asked me how tobacco use could cause cancer when many long-time smokers don't get cancer. Some background in probability or statistics would have answered his question.

[Joe]

Our laws and regulations really have gotten altogether too complicated for just a law degree to cover it anymore.

[Alice Woolley]

As someone who used to practice in the area of utility rate regulation I have some sense of what the commentator says (it wasn't until I taught the topic that I really understood such delightful questions as the role of depreciation costs in setting rates). However, there are also advantages to lawyers' relative ignorance of some of the technical fields with which they are dealing. Specifically, in the setting and implementation of public policy, technical knowledge is often not neutral, apolitical gathering of facts and information to determine the best outcome; rather, it is a committed doctrinal position on what the outcome should be, with a determination to see that outcome brought to its conclusion, often without looking very hard at what others think. The commitment in law to values of process and accountable decision-making - the fostering of which is often what lawyers do - can help to steer those doctrinal positions towards a more democratic outcome.

Obviously effective regulatory agencies will combine technical staff and legal counsel in the most efficient way possible, and lawyerly ignorance of the technical subjects with which they have to deal is not helpful to the interests of their clients, whether private or government. But lawyers also bring something important to the table, and not just in terms of ensuring procedural fairness in adjudicative or quasi-adjudicative proceedings, but also in ameliorating, at least to some extent, the forces that push towards regulatory capture.

Bottom line: I am as skeptical of the virtues of the experts as the overlawyering folks are of the virtues of the lawyers.

[Law school grad]

Alice,

I think you raise a very good point - some technical experts have tunnel vision and give little weight to other concerns. Perhaps the broader education that a lawyer gets can help to counter that. On the other hand, sometimes policy makers and lawyers without any subject matter expertise are more likely to blindly defer to the experts when something seems over their heads.

I am currently dealing with a highway department in our county that wants to remove trees from near low to medium speed suburban roadways, supposedly for safety reasons. The data their roadway designs are based on look at the distance needed to recover from driving off the road; they don't take into impacts on driver behavior from the surroundings. Here, studies show trees have a calming effect on driveway behavior that reduces accidents in the first place, yet that is not something these subject-matter experts take into account.

Ironically, one of the problems we have is that the politicians have no expertise in the issue, and would rather just defer to their "experts." I can see both sides to the debate over who makes better decisions - specialized experts or generalists.

[David Dahbura]

A wonderful example about people just continuing the same old methods of the past. The book "Traffic" is all about devising new ways of approaching old problems. Bravo