3 - The Bar, Self-Regulation, and Judicial Capture

Summary

How has a profession that has made itself so essential to the workings of every aspect of the political process – including the regulatory process – remained unburdened by government oversight and accountable only to itself? This is the question we address in Chapter 3. As we document in this chapter, the power of the bar led to an uneasy alliance between political actors; the bar sought more and more autonomy and, in line with a long-standing and natural connection with the judiciary, began to professionally “capture” the judiciary. It did so not only by monopolizing the candidate pool of potential judges but also by instituting rules about how lawyers (i.e., future judges) should be educated, implementing codes of judicial conduct, and, ultimately, making binding recommendations on how judges should be selected. In turn, the government has entrusted the “captured judiciary” with regulatory power over the legal profession. As we show through both qualitative and quantitative evidence, this symbiotic arrangement furthered the bar’s political and economic power.