Washington Law Review

Article

The Legal Monopoly

October 01, 2018 | 93 Wash. L. Rev. 1293

Abstract:  Lawyers enjoy an exclusive monopoly over their craft, one unlike any other
profession or industry. They bar all others from offering legal representation. In most
jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as
well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to
protect the public and preserve professionalism, but it also reduces competition, constrains
information, and maintains artificially high prices. Consequently, much of the American public
goes without help when a lawyer is needed.

Federal antitrust law typically steps in to remedy this sort of pervasive market control,
promoting competition and free markets for the public good. The legal profession, however,
largely avoids antitrust scrutiny because the courts fall into a special exception known as the
“state action doctrine,” permitting anticompetitive actions by governmental bodies to engage
in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying
this exception—that the regulators are not themselves members of the regulated profession or
industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying
federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase
access to affordable legal services while preserving professionalism and client protection.

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