• January 20, 2016

Anarchy SymbolA recent disastrous pro se employment case (for the pro se plaintiff) reminded me of the libertarian anti-licensure position. If it were up to strict libertarians, we would not require licenses to practice law (or dentistry, surgery, psychiatry, architecture, or engineering etc.). The libertarian argument is that “government red-tape” and regulation increases the costs for lawyers, doctors, architects, engineers and so on.

If we just let the “invisible hand” of the free market do away with incompetence, we would enjoy excellent services at a fraction of the government-inflated price. (Would another word for that be anarchy? Is there any example in the history of human society where we can see the libertarian ideal working in practice?)

If we just let the free market do away with incompetence rather than trying to weed it out through government regulation, some of us might enjoy excellent services at a fraction of the price: that is, the very rich. They would have the means both to collect information necessary to differentiate good from bad providers and, of course, to obtain with money the services of the best providers. The rest of us would be their fodder or lab rats, the desperate, the poor, or the ill-informed who would help incompetents, or inexperienced, or scammers, build their skills, both good and bad.

The fact is that pro se litigants face overwhelmingly difficult odds because our legal system is specialized. It requires training to navigate properly. This is not the result of arbitrary impediments designed to monopolize the state-sponsored dispute resolution system. Rather, it is an effort to lower the cost of a dispute resolution system by setting up uniform but necessarily complex rules best handled by specialists (i.e., lawyers). Had Mr. Liu had competent legal counsel, presumably he would not be in the unfortunate circumstance he finds himself in (sanctioned $10,000 for bringing a non-meritorious lawsuit).

Libertarian organizations pick their fights carefully — challenging state licensing and regulation of hair-braiders or home-baked cookies, for example. To many, these fights make government regulation look ridiculous (but, on closer inspection, the ridicule often fades). Perhaps we all benefit from their work nibbling away at government regulations. Arguably, at the margins, the government does over-reach or is being exploited by monopolists, oligopolists, and the like who set up barriers to entry so they can enrich themselves with no corresponding benefit or efficiency passed on to the rest of us. On the other hand, instances in which pro se litigants seriously damage their interests (and impose high costs on the rest of us by taxing our legal system) allow us to see what a society “free” of the licensure of professionals would look like.



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