The Lawyer-Judge Bias in the American Legal System

Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. There are many reasons for this bias, some obvious and some subtle. Fundamentally, it occurs because - regardless of political affiliation, race, or gender - every American judge shares a single characteristic: a career as a lawyer. This shared background results in the lawyer-judge bias. The book begins with a theoretical explanation of why judges naturally favor the interests of the legal profession and follows with case law examples from diverse areas, including legal ethics, criminal procedure, constitutional law, torts, evidence, and the business of law. The book closes with a case study of the Enron fiasco, an argument that the lawyer-judge bias has contributed to the overweening complexity of American law, and suggests some possible solutions.

1. An ambient bias; 2. The theory; 3. Constitutional criminal procedure; 4. Civil constitutional law; 5. A short history of lawyer regulation; 6. Current lawyer regulation; 7. Torts; 8. Evidence and civil procedure; 9. The business of law; 10. Enron's sole survivors; 11. Complexity and the lawyer-judge bias; 12. Rays of hope, ramifications and possible solutions.

Benjamin Barton is the Director of Clinical Programs and a Professor of Law at the University of Tennessee College of Law. His articles have been published in the Michigan Law Review, California Law Review, and Empirical Law Review and discussed in Time Magazine, the New York Times, and the Wall Street Journal law blog, among others. Barton has been named the Outstanding Faculty Advisor for UT Pro Bono twice and has received the Marilyn V. Yarbrough Faculty Award for Writing Excellence. He is the winner of the 2010 LSAC Philip D. Shelton Award for outstanding research in legal education.