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The Behavioral Economics of Lawyer Advertising

An Empirical Assessment

When Justice Blackmun authored the famed opinion striking down the universal ban on lawyer advertising in Bates v. Arizona State Bar, he envisioned opening the market to information and competition in ways that would address a long-enduring access to justice problem for low- and moderate-income individuals. Nearly a half-century later, the same access to justice gap endures. Yet lawyer advertisements proliferate, ranging from late-night television commercials with flames and aliens to website profiles with performance reviews and live-chat features. In this first-of-its-kind empirical project, we examine this persisting market failure. Using the lens of behavioral economics, we explain why opening the market to advertising failed to resolve the access to justice gap. We studied the dominant form of modern lawyer advertising—online websites and profiles—in three legal markets: Austin, Texas; Buffalo, New York; and Jacksonville, Florida. Our research included review of the websites for all driving-while-intoxicated and automobile-crash lawyers in those cities, coding for over 60,000 pieces of unique data. This Article describes our findings and recommends regulatory interventions designed to fulfill the Supreme Court’s ambitions in Bates. In particular, we suggest ways to expand access to information about legal representation for those in need.

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