“Will Lawyering Strangle Democratic Capitalism: A Retrospective”
by The Honorable Laurence H. Silberman1
Over twenty years ago while I was at the American Enterprise Institute among a
group of refugees from the Ford Administration, pondering our government service–and the
harms we inevitably caused–I wrote an essay for the first issue of our newly launched magazine,
Regulation. The title, “Will Lawyering Strangle Democratic Capitalism?” may well have been a
bit hyperbolic, but it was suggested by 1another editor with greater dramatic flair. The essay
received some modest attention; even the American Bar Journal gave it a not-unsympathetic
review. My proposition was straightforward. Although the legal process, by which I meant all
the work performed by lawyers, judges, and legal regulators–for which the number of practicing
lawyers is an accurate proxy–is essential to democratic capitalism, too great an expansion of the
legal process actually causes harm to both our economy and our polity. In other words, there is a
theoretical tipping point, and we had, in my view, long passed it.
Looking back, I see that the themes that I touched on in that piece have been
expanded by others, including Walter Olsen, a subsequent editor of Regulation. He, some years
later, published The Litigation Explosion. The tipping-point concept, analogous to the Laffer
curve, has been pursued extensively in economic literature by Stephen Magee Professor of
Finance and Economics at the University of Texas. I was certainly not original in noting the rise
of litigation or in decrying what Nathan Glazer had called the “Imperial Judiciary,” which I, in
1 Of the United States Court of Appeals for the District of Columbia Circuit. Given at
Drake University School of Law, Des Moines, Iowa, March 30, 2000.