Preface

This book calls for more—and better—regulation of legal services. With Trump’s election, it is fair to ask: what’s the point?

The first draft of the manuscript for this book was completed in spring 2016. At that time, Donald Trump’s victory in the US presidential election still seemed far-fetched. The final manuscript was completed in spring 2017. What a difference one year made.

During as well as after his campaign, Trump did not seem to have a single kind word for regulation. Headlines read along the lines of “Donald Trump Says 70% of Federal Regulations ‘Can Go,’”[1] and “Donald Trump Promises to Eliminate Two Regulations for Every One Enacted.”[2] Trump nominated to his Cabinet people whose primary objective appeared to be, for each of their Departments, to dismantle as much of the existing regulatory framework as possible with little in mind to replace it.[3]

Further, by all appearances, Trump holds in contempt at least some of the six essential elements of regulatory policy discussed in this book. For example, his Cabinet selections mock the concept of regulatory independence and freedom from conflicts of interest.[4] His rejection of intelligence briefings suggests a comparable rejection of evidence-based regulatory impact assessments.[5] His refusals both to disclose his tax returns and to place his assets in a blind trust fly in the face of accountability and transparency in decision making.[6]

With respect to legal services, this book takes an entirely opposite approach. This book calls not for existing regulation (of which, in terms of quantity, there is in fact very little) to be dismantled, but for it to be re-assessed, and for a new regulatory framework to be developed. Especially, this book calls for a new regulatory environment to be created, one that ends the current rejection of the OECD’s elements of good governance, and instead fully embraces, and fully implements them. In sum, this book calls for more—and better—regulation of legal services.

With Trump’s election, it is fair to ask: what’s the point? In the current political environment—one that presumably will prevail for at least four years—is there any realistic possibility that the arguments made in this book can actually find a receptive audience? Optimism seems naïve.

That’s certainly one way of looking at it. Another way to look at it is this: if the Trump Administration attempts to dismantle multiple regulatory frameworks in the way Trump suggests that it will, there may be a backlash. Certainly most people don’t care about the regulation of legal services. Few people make a connection between how legal services are regulated and how difficult it is for them to access legal services. But people do make this kind of connection when it comes to other kinds of regulation. That is, most people understand that environmental regulations have a direct bearing upon their access to clean air and water. Most people understand that labor regulations have a direct bearing upon their access to safe working environments. Perhaps attempts to dismantle regulations such as those will lead to an increased awareness of and sensitivity to the direct bearing that regulation has on many other aspects of our lives, not the least of which is access to legal services. At that point, perhaps the mention of the words “regulation of legal services,” will no longer cause eyes to glaze over but instead to fire up. Perhaps.

This preface is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

Notes

[1] “Donald Trump Says 70 Percent of Federal Regulations ‘Can Go,’” The Telegraph, October 7, 2016, http://www.telegraph.co.uk/news/2016/10/07/donald-trump-says-70-percent-of-federal-regulations-can-go/.

[2] Clyde Wayne Crews, “Donald Trump Promises to Eliminate Two Regulations for Every One Enacted,” Forbes, November 22, 2016, http://www.forbes.com/sites/waynecrews/2016/11/22/donald-trump-promises-to-eliminate-two-regulations-for-every-one-enacted/#413314902b87.

[3] New York Times Editorial Board, “How a Budget Chief Can Wreak Havoc,” New York Times, December 27, 2016, http://www.nytimes.com/2016/12/27/opinion/how-a-budget-chief-can-wreak-havoc.html?_r=0.

[4] See, for example, Oleg Kashin, “Rex Tillerson’s Special Friend in the Kremlin,” New York Times, December 22, 2016, http://www.nytimes.com/2016/12/22/opinion/rex-tillersons-special-friend-in-the-kremlin.html?_r=0.

[5] Maxwell Tani, “Trump: I’m a ‘Smart Person,’ Don’t Need Intelligence Briefings Every Single Day,” Business Insider UK, December 11, 2016, http://uk.businessinsider.com/donald-trump-intelligence-briefings-skip-2016-12?r=US&IR=T.

[6] Susanne Craig, “Trump’s Empire: A Maze of Debts and Opaque Ties,” New York Times, August 20, 2016, http://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html; Richard C. Paddock et. al, “Potential Conflicts Around the Globe for Trump, the Businessman President,” New York Times, November 26, 2016, http://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html.

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