11 June 2007

For Those Of You Who Were Unsure

(I've kicked this up to the top, just to make sure that it doesn't roll off the front page while still active.)

I'm a preening little man who spends all my time in front of the mirror admiring my, well, I'm not sure what. Apparently, I also work for the Nazi's in the persecution of other Jews.

And, worst of all, I use invective against my opponents.


Harry Eagar said...

'But the opposition to immigration qua immigration, legal or illegal, is racist to its core'


If I'm just opposed to open immigration, am I just a little bit racist?

How many do I have to be willing to let in legally in order to be permitted back into polite society?

David said...

I'm always willing to be instructed, Harry. What non-racist reason is there for opposition to immigration qua immigration?

Harry Eagar said...

Well, we might not want to deliberately import people whose political agenda includes destroying the polity.

There are people like that, though I could not limit them to a particular race, if I believed in races, which I don't.

I think we could fairly limit immigration by excluding from citizenship anyone who isn't willing to forswear his previous citizenship.

I don't believe anything like that was in the bill. It is not part of current law, either.

Strictly speaking, that would not be limiting immigration but limiting citizenship, leaving open the possibility of residency.

However, a problem arises.

If residents are allowed to have children here, and the children are citizens, then you are faced with letting in family members, wil he or nil he, without taking account of point 1 up there.

At least, I have yet to hear of anyone in the pro-immigration camp who has addressed this. They seem to think that family reunification trumps all.

Peter Burnet said...


If residents are allowed to have children here, and the children are citizens, then you are faced with letting in family members, wil he or nil he, without taking account of point 1 up there.

The horror! I assume you prefer bachelor communities and perpetual remittances? Do you think preventing desirable immigrants from bringing in their families is a promising way to cement that sense of loyalty you are so worried about?

And what is your test for identifying immigrants whose political agenda includes destroying the polity? Would the formality of renouncing prior citizenship satisfy you?

David said...

As I said over at AOG's, thank G-d for the 14th Amendment, which saves us from even having this debate.

Duck said...

That stuff happens when you play the race card.

David said...

Well, just as Godwin's Law doesn't apply to discussions that are actually about the Nazis, it's not really "playing the race" card if what you're pointing out is actually racism. (Also, I'm not sure that white men can play the race card.)

Even if I did play the race card, it doesn't make "I hate the way you dirty Nazis use ad hominem arguments" any less funny.

Susan's Husband said...

Interesting, isn't it, that you are the only one to actually bring up the Nazis? Doesn't that make you the loser via Godwin's Law?

David said...

Ah, but I wasn't. "cjm" was, and in, I have to say, a particularly unpleasant way.

David said...

And, I have to say, I don't even really understand the insult other than as an attempt to be personally offensive. It's a good thing, over all, that people are offended by being called racists and I'm not surprised that people who think (incorrectly) that "racist" is ad hominem reach for their own personal insult, and "preening," "self-righteous" and even traitor are or would be logical insults to use. But I can't for the life of me figure out the rationale by which favoring allowing large numbers of immigrants into the country is like being a Jewish concentration guard.

David said...

Finally, I have to say that I seem to be using "I have to say" an awful lot. It's pretty annoying, actually.

David said...

If blogger were a real program with the functionality G-d gave a doorknob, I'd go back and change "concentration guard" to "concentration camp guard."

David said...

Harry: Where's the part where you oppose immigration qua immigration? Unless you're saying, "What this country needs is more people like me," then you're wrong on the policy but not, so far as I can tell, racist.

Susan's Husband said...

I need to brush up on my obscure Nazi terminology. I thought cjm had mispelled "capo" or that you didn't know who Lord Farquaad was. I had never heard the term "kapo" and had to netsearch to figure out what it means. It doesn't even make sense in the context ("capo" makes a little more sense, but still somewhat odd).

Duck said...

I'm with SH/AOG. The bill was flawed. It was weak on enforcement, and the provisions for for being granted a permanant visa were villed with so many loopholes that it was de-facto amnesty. Let's get control of the border before we decide what to do with the illegals that are already here.

My read on CJM is not that he wants to let in people who are racially like us, but culturally like us. He's a culturalist, not a racist. I'm a culturalist too. Our culture is Americanism, and we want people who will become Americanists. There's no racial component to that at all.

Ali said...

Yeah, calling him a racist was unjustified.

joe shropshire said...

Of course cjm's racist. And David is a race hustler, and they deserve each other perfectly. Now, with the collapse of the Senate bill, one would think that there's never been a better time for David and Orrin (and the Republicans too) to pull back and leave the race hustling to the professionals. But I don't think that's going to happen, so David, let's have a professional standard of deportment at least. People call Al Sharpton a son of a whore all the time, they're perfectly right to do that because he is one, and it doesn't bother him at all. So do press on, but without the snivelling, please.

David said...

I completely and utterly deny that I was sniveling.

It did take me a while to remember who Farquaad was. At first, I got him confused with Prince Humperdinck. But, again, it doesn't make any sense to me in context.

I'm perfectly willing to be a race hustler, but I'm not sure how I'm doing that.

The more serious point here (other than that cjm is a doody-head) is that racism is a real issue for conservatives. We believe some of the things that racists pretend to believe. We've got to be conscious and careful about how we deal with the racists.

Two examples: Racists are against affirmative action. Conservatives are against affirmative action. (I'm against it in most but not all circumstances but let's ignore that for the moment.) That does not mean that all opposition to affirmative action is racist. But the fact that, when it comes to affirmative action, we're standing next to the racists should make us think twice and be very sure of our ground.

Second, Ronald Reagan started his 1980 campaign by going to Philadelphia, Mississippi, and speaking out in favor of states' rights. Now, I favor states' rights and I know that Reagan was no racist, but there is no question but that Reagan's speech was an attempt to gain the votes of racists. I have no problem with what Reagan did -- we can't expect ideological purity, after all, and getting Reagan elected was very important -- but we shouldn't be blind to the truth.

Harry Eagar said...

'Would the formality of renouncing prior citizenship satisfy you?'

I think it could be a minimum requirement.

'Let's get control of the border before we decide what to do with the illegals that are already here.'

What Duck said.

A lot of people who backed the Reagan immigration changes probably wanted open borders. The ones who backed it who wanted -- and were promised -- controlled borders were stabbed in the back.

There is zero evidence that the plan isn't to stab them in the back again, so it is not only not racist but wholly rational to oppose immigration qua immigration until the government is prepared to adopt a real policy (any policy) more restrictive than open borders.

If you want open borders, the current system is the worst way I can imagine to go about it, and if those antiAmerican marches in our cities didn't bother you, they bother me.

Oroborous said...

But there are anti-American marches in major American cities often, just not using the pretext of immigration.

So I don't know why anti-American immigrationists should bother you any more than any other kind of fringe anti-Americanism.

Peter Burnet said...

I think it could be a minimum requirement.

We're making progress, Harry. Declaring one's minimum is a good start. Adding one's maximum is even better because it gives us a range to work with. The reason I ask is because I get the impression with many folks that they are firmly in favour of immigration provided the immigrants are fully assimilated the moment they step off the plane.

Same with whose political agenda includes destroying the polity. You think the guy means blowing up the Capitol, but then after a while you realize he is talking about voting for Jimmy Carter.

Hey Skipper said...

I must admit I have paid precisely zero attention to the immigration bill.


I think it is safe to say, as I have on another thread here, that if the entire population between the Panama Canal and the Rio Grande was to move to Hanover, NH, tomorrow, that it would likely be a bad thing.

Anyone care to disagree?

By David's and OJ's standards, anyone who suggests that the issue of rate might be worth considering is a racist, yet it would take some might strong argumentation to demonstrate that, at some point, rate is very much an issue.

Unfortunately, the moment the racist card (just like the Darwinist card) gets thrown on the table -- unless it is clearly warranted -- then the odds of anyone getting their point across diminishes dramatically.

IMHO, unless the US decides to secure its borders, then every syllable and pixel devoted to this, or any other, immigration bill is just so much mental onanism.

With unsecure borders, then with regard to immigration rate, the US leaves itself a hostage to fortune.

Further, even if opposition to immigration is racist, establishing secure borders and limiting, or even eliminating, immigration is well within the realm of the democratic process. The Constitution and CRA apply only to those within our borders.

Europe's experience with immigration is decidedly more checkered. Germany and France have large numbers of badly assimilated immigrants; Britain has similar amounts, less badly integrated.

However, it is certainly an open question as to whether Muslims qua Muslims are intent on making their host countries wish they had thought a great deal more about rate a great deal sooner.

It is possible to say that without being racist.

Just as it is possible to worry about rate with respect to immigration from Mexico; just because there is a greater physiognomic identity between culture and the immigrant population.

Oh, one more thing, David. In the thread at AOG's, you mentioned that some of those opposing affirmative action are racists.

That is certainly true. But considering the requisite race classification and group grievance mongering, those supporting affirmative action are all, by definition, racist.

Susan's Husband said...


Mr. Cohen explicitly denies being an open borders advocate, leaving the question that Mr. Eager asked in the first comment here and I asked elsewhere. I would further note that Mr. Cohen considers opposition specifically to the current (possibly dead) legislation objectively racist. Apparently it's so well written there's no other basis for opposing it.

Peter Burnet said...

It is possible to say that without being racist.

But not, perhaps, without being anti-Muslim. Or at least anti-Muslim qua Muslim, whatever that might mean.

rate is very much an issue.

So what rate do you think is best? There are valid hypothetical points there, Skipper, although you are dipping your toes into arguments ad absurdum. And isn't it a tad distracting to be talking rates and Muslims when everyone else is hung up on absolute numbers of Hispanics?

David said...

People are sufficiently touchy about this (which is good) that I want to be explicit: I do not think that opposition to the current(?) immigration bill is necessarily racist, just that much (not all, not even most) of the opposition as expressed has been racist. The only thing I've said is necessarily racist, albeit objectively, is opposition to immigration as a whole (immigration qua immigration), a position that, I am perfectly well aware, almost everyone denies holding.

As for open borders, I'll live with any characterization you like, but here's my position: we should control who comes into the country; we should allow anyone who presents themselves at the border as an immigrant to live here, provided that they pass a background check for a criminal history of crimes that are crimes in the United States and a medical exam; that limits on the nunber of immigrants allowed in in any one year are fine, but should be set high, on the order of 1% of the population; and that the states are free to offer immigrants such services as they see fit, except that education is mandatory.

I am completely indifferent to the race, culture, religion, wealth or education of the putative immigrant.

David said...

Skipper: First of all -- yes, of course supporting affirmative action is racist. It is a sub-optimal policy. But, as I've said before, if America goes down it will be race that drags it down. Better to hold our nose now and try to patch this hole than to abide by our principals and go down with the ship. Sometimes there's no good alternative and you take the least bad.

Rate matters. It matters less than people think, but short of running the experiment, there's no way to know how much it matters. Stalin might be right that quantity has a quality all its own.

Finally, the issue of unsecured borders is a funny one. We're at war and it's crazy not to know who's entering the country -- and, for that matter, who's leaving. But the next time America secures its borders will be the first time; in fact, they're probably as secure now as they've ever been. Furthermore, Islamic terrorists don't seem to think that sneaking over the Mexican border is the best way to get into the country. They prefer coming in legally on student visas or across the Canadian border. That's why statements like that "closing the borders is necessary for national preservation" or "no borders, no sovereignty" strike me as being necessarily rac..., um, xenophobic.

On that point, I note that Canada's astounding announcement that it is not going to require proof of citizenship before issuing passports (which are, in effect, free entry permits to the US) hasn't raised a peep from the usual suspects. I suspect that if Mexico had made a similar announcement, we'd have heard about it.

Oroborous said...

Rate matters...
[S]hort of running the experiment, there's no way to know how much it matters.

Those are exactly my arguments about females in positions of authority in gov't.

If they are valid in the context of immigration, why not in the context of gender issues ?

Peter Burnet said...


Not issue passports, renew passports. And Canadian passports are not "free entry permits" to the States. Birth in Canada effectively is, just as birth in the States is a free entry to Canada. Those born elsewhere have a tougher time with or without passports. Does that trouble you?

David said...

Peter: I'm not aware that we treat holders of Canadian passports differently based upon where they were born, but I could be ignorant.

It bothers me a little. Our "problem," though I wouldn't change it, is that the police are not allowed just to walk up to people and ask to see their papers, so in effect it's impossible for us to keep track of people once they are in the country. As a result, we are somewhat more reliant on other nation's procedures for issuing passports than we might like.

I don't know to what extent the Canadians are in the same position. Can Canadian cops demand to see some ID without probable cause? (I should make clear that a US cop can ask to see ID without probable cause, but, without probable cause, can't do anything if you refuse. If a cop starts asking you questions in the US and you're at all uncertain of your status, you should always ask if you're free to leave (and make sure you get a real answer) even if you intend to cooperate.)

Susan's Husband said...

The only thing I've said is necessarily racist, albeit objectively, is opposition to immigration as a whole

Not so.

I’m not saying that “subjectively” I believe that opponents of the bill are racist. I’m saying that opposition is objectively racist

David said...

Well, I've predictably been hoisted on my own objective/subjective petard. I'll try to post a correction to make sense of all this over at Thought Mesh.

Peter Burnet said...

As neither Canadians nor Americans have ever needed passports to cross the border until this year, I'm not sure I have an answer, but I think the whole thing is quite sad. The hassles will work themselves out eventually, but the symbolism sucks. As the border is effectively undefended and undefendable, and as neither country has experienced a terrorist attack since 2001 (despite a few near misses), does that not suggest the either the risk is overstated or there is much more cooperation going on than we might hear about?

The ID situation is the same here, but not for customs officers. There is no right of entry in either country for non-residents, period. If they want to see your high school transcripts before letting you in, you go home and get them or vacation with your parents instead.

Susan's Husband said...

Mr. Cohen;

Two things, not with the intention to rub salt in the self inflicted wound.

1. This is exactly the kind of thing I meant with regard to slovenly modes of argument.

2. Perhaps the reason for the hostile reception of your comments is a bit more understandable.

David said...

Here's what I posted at Thought Mesh. As soon as I posted it, I immediately saw a bunch of typos (I do know the difference between company's and companies), some infelicitous phrases and a bunch of things I left out. And I even used preview.

Over at the secret blog, AOG properly skewers me for being inconsistent. I said more than I intended to say and suggested that any opposition to the immigration bill was racist. I don’t believe that, I was sloppy in using my own terminology, it was entirely my own fault and I apologize unreservedly to anyone who was, understandably, offended. There are valid non-racist reasons to oppose the bill, that was always what I intended to say, although not what I said, and, in fact, my own position on the bill was mild opposition and this wasn’t one of the times I was willing to be racist for the greater good.

I will try to restate my position as concisely and clearly as I can. The bill was a flawed compromise. If it fails, I am content with its failure because I’m content with the status quo. Nonetheless, much of the opposition was xenophobic. I conclude this based upon, among other things, the following:

* The bitterness of the opposition, which was out of all proportion to what the bill actually did.
* Statements to the effect that the bill threatened our national identity, or that what was at stake was national preservation, which are in context xenophobic.
* Arguments about the cost of immigration which drastically overstate those costs and completely ignore the benefits.
* The use of arguments that have been made and disproved consistently over the course of American history.
* Appeals to a history that never existed (for example, the implicit statement that America had once had control of her borders but now was being betrayed by loose border enforcement).
* The extent to which the argument against illegal immigration and/or the current level of legal immigration focus on Mexican immigrants.
* Arguments that, implicitly or explicitly, assumed that Mexicans were dirtier, sicker, more criminal or less liable to assimilate than previous immigrant groups, which in fact, were dirt poor, spoke strange languages and followed odd religions and, always, made up a goodly portion of the criminal class. (Didn’t you ever wonder what Mark Twain meant when he said that America had no native criminal class except Congress?)
* Appeals to the explicitly racist immigration laws of the 1920s as a necessary lacuna in immigration that allowed for assimilation.
* Paranoia about continued loyalty to Mexico and, in particular, that increased Mexican immigration was part of/was useful to a movement to return the southwest to Mexico and undo the Treaty of Guadalupe Hildalgo. (Dual loyalty claims are, always and everywhere, xenophobic and a claim that I am particularly sensitive to.)

And, of course, some of the opponents were explicit that their concern was that they don’t like Mexican immigrants or that they want to preserve a certain racial and ethnic balance in the US.

I also wanted to make a few more points. Regardless of any one person’s reasons for opposing the bill, the bill is separate from the different but related questions of what the proper rate of legal immigration is; what we should do, if anything, about illegal immigration; what we should do about illegal aliens; and to what extent we can or should wish to control the border. Much of the opposition to the bill completely conflated these issues. For example, lots of people argue that we should get control of the border before we address illegal or legal immigration. This is a superficially appealing position, because there is broad agreement on controlling the border and it allows us, in the best American political tradition, to push back the contentious issues of legal immigration, illegal immigration and illegal aliens already in the country. The problem with this position is two fold. First, good control of the border is hard and perhaps impossible (remember, the “border” is not just with Mexico; it includes Canada and 20,000 miles of coastline). Pushing decisions on immigration and illegal aliens back until we control the border is, likely, to push those decisions back indefinitely. Also, the implicit assumption behind this “solution” is that the legal rate of immigration is either just about right or too high and that stopping illegal immigration while continuing at this rate of legal immigration wouldn’t hurt the country. Just as a matter of policy, that seems clearly wrong to me.

Second, I have also been trying to make the point that, regardless of any one’s personal reasons for opposing the immigration bill, opponents shouldn’t simply ignore the fact that they were making common cause with racists. (This is what led to my unfortunate use of the objective/subjective language.) That fact, alone, is morally neutral. Racists are, by definition, wrong and can easily be wrong about whether a particularly position necessarily advances their, for lack of a better word, ideas. But when marching with racists, we need to very certain that the route is right and we should leave some space between us. Here, I think that even well-meaning people have been too willing to make common cause with others who oppose the bill for the wrong reasons and are in danger of being drawn further along with their new allies into places they didn’t intend to go. For example, Mark Krikorian and his Center for Immigration Studies have been very active in opposing the immigration bill. But Krikorian and CIS are not well-meaning citizens acting to stop overreach. They are xenophobes. Use them now, if you must, but don’t just assume that you would agree with their other causes.

Finally, a personal appeal. People who would laugh at the idea that the patent office should only approve patents for products likely to be successful, or that business plans should be monitored for quality before company’s could be incorporated, seem to believe that they can pick which immigrants will succeed in America. We can’t. And we certainly can’t decide which immigrant will have children or grandchildren who will serve in our military, or pay taxes faithfully, or contribute to our collective well-being. But the inerrant American experience is that almost all immigrants give more than they get. It was true of my ancestors and I’m willing to bet that it was true of yours.

Ali said...

It's not surprising some of the opposition to the bill has been over-wrought. It's an important issue for many GOP members and they see their party leadership ignoring their concerns.

David said...

Sure. But why is it so important?

David said...

I toying with the idea that part of this conservative BDS is a way to resolve the cognitive dissonance of having not been part of the dominant culture when it comes to disliking GWB. Everyone hates Bush, and Americans are driven to conform (i.e., assimilate) and thus conservatives were looking for an excuse to hate Bush. In fact, a number of conservatives have said "the left was right about Bush the whole time" with, I think, some relief. AOG, for example, has gone back to reexamine whether he was wrong to support Bush on past issues because of Bush's "betrayal" on this issues. (It's on odd betrayal, though, as Bush as said all along that this is what he wants to do and conservatives used to praise him for saying what he meant and meaning what he said.)

Oroborous said...

Orrin is correct when he asserts that Americans aren't going to pay the price for controlling the border.

We aren't even willing to pay the price to effectively patrol the border.

David said...

I think that's probably right, although it's too bad. One of the ironies of this whole issues is that, if we went back to an Ellis Island type system, finding terrorists crossing the border would probably be much easier.

Bret said...

Oh, is that why nobody's been posting much new. Too busy discussing this one still.

Living close to the border (and having accidentally crossed it once while 4-wheel driving out in the desert), it seems extremely unlikely to me that we'll ever 'control' the border. It's pretty rugged and pretty big.

The rate of immigration is self-limiting at least 8 (and probably several more than that) orders of magnitude below hey skipper's hypothetical mass migration to Hanover in one day. Immigrants come here nearly universally for opportunity, and, as a result, come here (and to a particular location) no faster (on average) than jobs become available (at that particular location). Which seems to work out perfectly for them, employers, and consumers.

And here's the thing. I think that short of something really extreme (like shooting illegals and/or their employers on the spot when discovered), no matter what, the number of illegals will happen to always approximately balance the demand for labor. The market will beat any anti-immigration measures.

Hey, I'm here! Shut the door and keep the rest of the riff-raff out!


Harry Eagar said...

I don't think we'll ever have an honest immigration policy, because the winners and losers are not homogeneously spread.

Whatever position is taken -- pro or con -- numerous self-interested other parties will rip it to shreds.

Immigration is kind of like Iraq that way.

But that shouldn't mean that we cannot ask ourselves, purely as a rhetorical exercise, whether just letting things happen is the best of all possible worlds.

Only if your measure of maximum goodness, as Bret's seems to be, is to obtain the lowest possible wage for services to the well-stuffed is unlimited immigration unquestionably a good thing.

Me, myself, if people who make much more than I do had to pay more for nannies or go without, I would not think the country had been harmed in the slightest.

David said...

Too bad democracy doesn't have a mechanism for dealing with some citizens wanting one thing and others wanting something else...

In any event, the point of immigration is all the future generations. The immigrant generation is just a bonus.

joe shropshire said...

That mechanism worked last week, pretty much the way Mancur Olson told you it would. Nobody ought to be surprised when a small group that stands to lose big -- working class whites, in this instance, who see the bottom dropping out from under them and blame immigration for a good bit of that -- wins a political fight against a larger group that stands to gain a little.

Harry Eagar said...

True, joe, but what's up with the Democrats?

joe shropshire said...

I dunno, the discombobulation I guess. They seem to be split along class lines, or the red/blue divide, which is pretty much the same thing. Mickey Kaus is pointing out freshman Democrats (Tester and Webb in the Senate, Boyda in the House) who were cool to the Senate deal. All were promoted by the netroots, but look at those states: Montana, Virginia, Kansas. And of course the Dems are not exactly blessed with dynamic leadership either.

Bret said...

harry eagar wrote: "Only if your measure of maximum goodness ... is to obtain the lowest possible wage for services to the well-stuffed is unlimited immigration unquestionably a good thing."

Or if you care that the extremely poor from Mexico and other countries also get a better life for themselves and their children.

joe shropshire said...

I know just how you feel, Bret. I was in Wal-Mart the other day buying some boxer shorts (Fruit of the Loom, $4.99 a three-pack), and I said to myself, you know, I just fed a whole Chinese family for a week. Felt like a damned saint.

Oroborous said...

I feel the same way, joe, only I'm serious about it.

Oroborous said...

There is a tipping point at which it makes more sense to keep riches circulating and producing at home, and to not help out a Chinese brother by sending some abroad, but IMO we're nowhere near that point.

America is rich beyond the comprehension of even the rulers and elites of previous centuries; Louis XIV was a piker compared to America's current elites.

We're also apparently rich beyond the comprehension of the average American. If they'd stop to sniff the roses every once in a while, instead of grasping for one more "thing", they'd feel the vastness of their wealth.

It would also help if they'd learn a little history, and a bit about the world outside of America, but that might be asking for a miracle.

Bret said...

That tipping point would be approximately when domestic/local goods and services are cheaper than the foreign ones.

David said...

Anti-immigrationism (or, since the anti-immigrationists cavil at the label, restrictionism) is a form of protectionism and would be as harmful, if implemented, as any other form of that disease.

Peter Burnet said...

Yes, it appears a new age of autarky is dawning. Skipper offers the warmest of welcomes to anyone who completes a PH.D in constitutional law and Harry is dusting off those old encyclicals on the theory of the just wage.

Surely we need a big spanking-new bureaucracy where the whizzkids can protect us by planning and implementing all this?

joe shropshire said...

Oh, come on, two of you are lawyers, for Christ's sake. I'm looking forward to David's incisive post on how the bar exam is protectionism and should be gotten rid of, any day now.

Look, I love capitalism as much as anybody does. I'm as pleased as punch with my new boxer shorts, and I couldn't care less where they were made, or by whom, or how much or little they got paid for it. But the vanity in here is getting pretty thick.

David said...

Joe: Traditionally, before you accuse someone of hypocrisy, it's considered good manners to find out what they actually think. Also, the idea that the US has too few lawyers is peculiar.

Bret said...

david wrote: "...the idea that the US has too few lawyers is peculiar."

Given the price of lawyers, I'm pretty certain that there aren't nearly enough of them. I think that the problem is that the laws end up causing people to need a lot of lawyers. Given that, there aren't enough. One should NOT have to be a member of the bar to practice law.

Oroborous said...

But do you really want to use a lawyer that can't pass the bar exam ?

There's more to "value" than just "price".

Bret said...


If one didn't need to be a member of the bar to practice law, perhaps various programs at various schools would start up training people in a very narrow area of law, perhaps wills and estates, or something like that. Perhaps they could be adequately trained in less time, or perhaps more people could become adequately competent in the narrow area with less education overall.

Then I might well use one of these cheaper lawyers for a specific task.

David said...

I think that it is reasonable for the state to qualify lawyers who practice in its courts. There are practice externalities that effect the quality, efficiency and cost of the court system and, due to an unavoidable asymmetry of information, clients can't police their lawyers effectively. That qualification need not be a written exam, however. I'm in favor of bringing back legal apprenticeships.

I agree that lawyers who don't appear in court shouldn't have to be licensed.

I'm skeptical that the number of lawyers will increase dramatically or legal fees plummet. The average lawyers makes around $100,000, but there's a lot a variability. We don't see all the underpaid lawyers moving to New York and making $1,000,000 representing corporations in mergers, even though they are "qualified" to do so. The barriers to entry for that kind of work are high, but have nothing to do with the bar exam.

Oroborous said...


You are exactly describing a paralegal, and yes, the demand for paralegals is high, and is projected to continue to grow much faster than the demand for lawyers.


But what if you used an unlicensed attorney to write or review contracts ?

If they turned out not to be very good at that, then you'd end up in court anyway, using a licensed attorney - or maybe you'd just be damaged without recourse.

Even passing the bar is no guarantee of competence, so what does that say about someone who can't pass ?

David said...

O: But there's no externality. If you want to pay for a competent lawyer, you will. If you don't, you'll suffer.

Oroborous said...

How do I know who's a competent lawyer, until it becomes obvious, in which case it's too late ?

It's like "financial advisors". Although many types of financial professionals are licensed, anyone can give financial advice, or handle other peoples' money with their consent.

But if your life savings disappears, it's too late to switch to a licensed manager.

David said...

O: You might be overestimating what the bar exam signifies when it comes to drafting contracts, which is not very much. If your contract lawyer wasn't admitted to the bar, you'd know who was competent pretty much the way you do now: recommendations, reputation and signifiers such as firm, office, hourly rate, etc.

Also, although this is happening a little bit now, you'd probably see more private certification organizations, just as you do with financial advisors.

Peter Burnet said...

Professional certification is a tough issue because people generally are shooting blind and don't know what they want or need when they retain a lawyer, and they are sitting ducks to do exactly what they are advised. Sure, they want a "tough" lawyer who can win in court, but what they really want is simply someone to solve their problem at minimum cost. Success at the bar won't mean much for that, but it does demand some legal expertise and familiarity with the system the client can't judge, so there is a case for protectionism, professional surveillance and standards of some kind. It's really only with rote needs like buying a house, making a simple will or filing an uncontested divorce that the unsupervised paralegal can match the service.

But the onerous entry standards lawyers and most other professions set for immigrants qualified in their home countries are largely indefensible.

David said...

The worst offenders in that respect are doctors.

If the bar exam really does keep out large numbers of competitors, which frankly I doubt (law schools are much more likely to be the enforcers of the law cartel, if it is at all effective), then we would expect that people are currently getting higher quality legal services than the market solution.

Bret said...

There are alternative solutions to qualifying lawyers than have a single government approved entity which has monopoly rents.

There could still be a bar association, but without lawyers having to pass its exam. In fact, there could be several competing private bar associations. Legal firms would also qualify their employees. Perhaps a version of consumers reports would become available.

People could still look at the law school their prospective lawyer graduated from.

There are many alternative ways to qualify lawyers. It's no different than any other good or service (except, of course, if you're a lawyer :-).

Perhaps the current system is optimal, nobody really knows. But when a single group is given a monopoly over a signficant slice of the economic pie, it's always suspect in my mind.