Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place their criticisms in context. Only by placing the federal reforms in the context of the broader analytic themes can we begin to evaluate their actual and potential significance. The article concludes that no single explanation for the reforms is possible. They do not neatly fit a uniform pattern that reflects an overarching change in regulatory approaches or in society’s attitudes towards the relative merits of state and federal regulation. They do, however, suggest a series of questions about traditional regulation that the federal actors have opened for discussion. The best view of recent events is that they have begun a process of negotiation with respect to particular substantive issues, potential new approaches, and the relative competence of different institutions to regulate different aspects of legal practice.


Jurisprudence | Law | Legal Ethics and Professional Responsibility | Legal Profession | Public Law and Legal Theory

Date of this Version

September 2004