The Judicial Role in Professional Regulation

This Foreword introduces a collection of writings that challenge how courts fulfill their responsibility to oversee the practice of law, including judges’ own conduct. Largely as a matter of happenstance rather than forethought, regulatory power—e.g., licensing, rulemaking, professional discipline, trial sanctioning, class action oversight—is divided among federal and state judiciaries and individual trial judges. From the perspective of the bar, to whom the least regulation may seem best, the disaggregation of regulatory authority among different judicial bodies and judges may be welcome, since the division of power among different courts and judges serves as a check on overregulation and abuse. But the results may also include discordant regulatory approaches, overreliance on bar associations, and the failure to use regulatory power to salutary ends. The writings alert us to the risk that judges will use their considerable regulatory power to serve lawyers’ interests or their own interests, but they also underscore judges’ ability to use their power for the public good, including in innovative ways. The writings call for reconsidering received traditions and settled practices—including by reconsidering the bar exam, federal district courts’ separate admission processes, or methods for setting legal fees in class actions. The pieces also call for reconsidering courts’ processes for adopting professional conduct rules, for interpreting the rules, and for deciding whether and how to discipline lawyers for violating the rules.