One of the ways in which economic reform might have developed and deepened from the fairly formulaic deregulationist mind set it got itself into from around the late 80s on would have been in the area of reforming legal procedure.
It’s still being left to lawyers. Here is a good piece on the direction we should be going (similar to the direction we’re trying to go in regulation) in today’s Age. I’d lilke to write more on it, but am too stretched with other things. But I hope to return to it because I think there’s quite a bit to say. In the interim, I recommend the thrust of the article.
Decent reforms would lower legal costs as well as improving quality – an old trick that Japanese car makers are famous for showing us. They’d make our society both fairer and more efficient.
People say that these things are impossible to reform because the lawyers have too firm a grip on things and it’s in their interests to hang on. That’s true if the reform isn’t ‘foregrounded’ as it were. But there’s a lot of political momentum – even now – behind the idea that we should continue to reform things. If the custodians of what is on that list of reform were to identify reforming our legal system as an important priority, the lawyers’ influence wouldn’t seem so frightening. Was it Stalin who wondered how many divisions the Pope had? When push comes to shove, how many votes can the lawyers muster?
Nick,
When push comes to shove, have a look at the professions of the State Premiers and our current PM.
PM – Lawyer
QLD – Lawyer
NSW – Lawyer
ACT – Lawyer
Vic – Teacher
Tas – Storeman
SA – Press Secretary / political functionary
WA – Journalist
NT – Journalist
Not a single one of them would have had to take a matter to court in their own right – except for some of them to argue for their fees in taxation.
Most of our premiers and PMs have been lawyers. They may not have divisions in the sense that Stalin meant – but they control the divisions of Parliament.
Pardon the pun.
What are the reform options? We could move towards a more European system and away from the common law, Kelvin Thompson once made some suggestions on these lines. Economic liberals used to be very keen on the common law, Hayek the best example, but now seem to shifted ground in curious ways.
I don’t think the common law is inefficient, Geoff and I don’t think the thrust of reforms in that Age piece suggests that either. It’s more about modernising legal practice. One of the easiest things we could do in this area is simply to legalise contingency fees.
The win at all costs argument is interesting. Richard Posner did an interesting comparasion of the UK and US systems in which he argued that UK barristers had more of an incentive to be cooperative because of the system of judical appointments in the UK.
All a complex area. There’s a lot of confusion created by lumping all the things the ‘common law’ is into one box.
Good food for thought.
Personally I think the law is ripe for some ambitious type to create and mass-market cheap, easy legal services – McLaw, if you will. Or perhaps the Model T is a more appropriate metaphor.