Daniel Cameron Merritt

June 14th, 2018 / By Deborah J. Merritt

My beloved son Daniel died in January from complications of pure autonomic failure, a rare neurodegenerative disease. Dan suffered from his illness for more than a decade; he fought his pain and disability with a lively mind and love of other people. Dan was particularly interested in legal education and the legal profession–he often contributed ideas to this blog and corrected my mistakes before I posted.

Daniel also coauthored three articles with me. He was a genuine contributor to each of those pieces. In fact, after we published the first one, my father (a law professor) called me to say, “this is the best article you’ve ever written!” Clearly Dan’s influence had an impact.

In Daniel’s honor, here are recaps of the three articles we wrote together. I treasure the memories of writing them, as well as the ideas we proposed.

The Future of Religious Pluralism: Justice O’Connor and the Establishment Clause

Daniel and I trace our nation’s slow path towards religious pluralism and tolerance, citing a variety of lesser known historical facts. Fewer than one in five colonists, for example, attended church on a regular basis. Most probably had Christian ties, but they were not the devout Puritans that we imagine. Native Americans and African slaves, meanwhile, adhered to their own religious traditions; most resisted conversion. Overall, the colonies were more religiously freewheeling than we usually assume.

At the same time, many colonial leaders displayed considerable intolerance for other religions–even for closely related Christian sects. Religious liberty emerged in the colonies largely because of the continent’s open frontier. Geographic separation supported a grudging sort of tolerance.

In addition to examining these strands of diversity, tolerance, and bigotry from colonial days through the present, Daniel and I explore some of the psychological forces that impede religious pluralism. Tolerance has never been easy; pluralism (which implies celebration, rather than mere acquiescence) is even harder.

We conclude by noting that, although our nation’s progress toward pluralism has been slow, vigorous enforcement of the Establishment Clause is essential to maintain that progress. We then quote Justice O’Connor’s words from the last opinion (a concurrence) she authored before announcing her retirement from the Court:

Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Responsibility-Rights in the Legal Profession

In 2011, the political philosopher Jeremy Waldron proposed a new category of rights named “responsibility-rights.” Society grants those rights, Waldron claimed, to facilitate the performance of responsibilities. Continued exercise of the right, therefore, may depend upon full discharge of the responsibilities.

In our essay, Daniel and I apply Waldron’s concept to the legal profession. In the United States, lawyers enjoy the exclusive, state-protected right to practice law. Lawyers possess that right, we argue, because society expects them to discharge accompanying responsibilities. Those responsibilities reach far beyond duties to individual clients; they include a responsibility to maintain a legal system that adequately serves society’s needs.

Substantial evidence suggests that the legal profession has failed to meet the latter responsibility. Prosecutors and public defenders carry unmanageable caseloads, endangering the delivery of criminal justice. Low- and middle-income Americans lack affordable legal services. Even wealthy corporate clients complain that legal services are too expensive, too cumbersome, and ill-adapted to their needs. Meanwhile, the costs of legal education continue to climb and graduates cannot find jobs that will cover their educational debt.

Lawyers sometimes acknowledge these problems, but they point to causes outside the profession: government cutbacks, rising income inequality, and a competitive culture fostered by ranking systems. These rationales, however, do not overcome the responsibility that lawyers accept in return for the exclusive right to practice law. As a profession, we have a responsibility to design educational, licensing, and business systems that meet society’s needs — not systems that might work in an idealized society.

If the legal profession does not work harder to accept this responsibility, Daniel and I suggest, it should (and will) forfeit its exclusive right to practice law. Client dissatisfaction, corporate use of non-lawyer employees, technological innovations, and competition at the boundaries of law practice suggest that this process has already started.

Unleashing Market Forces in Legal Education and the Legal Profession

Our proposal in this article is simple: Society should deregulate the legal profession. Lawyers don’t like to apply the word “cartel” to themselves, but that’s the economic shape of our profession. Daniel and I outline the harms that flow from this protectionism. We also explain how a cartel can distribute excess profits to some members while leaving other members un- or under-employed.

The legal profession maintains lopsided returns largely through intramural competitions. “Under this approach,” we wrote, a “guild allows many hopefuls to begin training, and even to invest substantially in that training. Ultimately, however, the guild permits only a small number of entrants to reach the highest levels of guild status and profit-making. Aspirants advance only when they ‘make the cut’ in successive competitions. These competitive hurdles . . . signal consumers that the successful guild members have superior skills: They are the ones who have bested all other competitors. This perception, in turn, helps justify the guild’s artificially high prices.”

There is little doubt that our educational system and profession maintain a series of competitions that pit future lawyers against one another. The winners reap lavish profits; the losers learn to blame themselves. Clients and potential clients, meanwhile, suffer: some pay higher fees than they would in a free market, others are unable to afford any legal services.

Lawyers provide many benefits to society. They offer thoughtful, expert advice to clients in need; many also advance ideas that transform the social order. These benefits, however, do not require a state-supported cartel. It is quite likely that a more open profession would provide as many–and likely more–benefits.

Advocating deregulation of the legal profession is an unpopular opinion; Daniel persuaded me to that position after several years of discussion. But everything I have seen since 2012, when Daniel and I coauthored this article, has confirmed the need for deregulation. Too many legal needs remain unmet, too many practitioners cling to the past, and too many educators ignore the realities of practice. It’s time to rethink this profession.

Thank you, Daniel, for all the moments we spent together, your love for me and others, and the many discussions we shared.