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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, October 26, 2011

NY Times: Are Law Schools and Bar Exams Necessary?

Cover Following up on my prior post on the new book, First Thing We Do, Let's Deregulate All the Lawyers (2011), by by Clifford Winston & Robert Crandall (both of the Brookings Institution): New York Times op-ed,  Are Law Schools and Bar Exams Necessary?:

For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an ABA-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.

Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance. ...

To protect clients from bad lawyers, current barriers to entry try to separate the wheat from the chaff among potential legal practitioners. A market for information, though, would let consumers identify the chaff more precisely, saving more of the wheat. It is worth recalling that two of the finest lawyers and civil rights advocates our country has ever produced, Abraham Lincoln and Clarence Darrow, would not be allowed to practice law today under current rules. (Lincoln was self-taught; Darrow attended the University of Michigan Law School but did not graduate.) Eliminating entry barriers and allowing non-lawyers to perform legal & services would, among many other gains, ensure that such talents have a place within our legal system.

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Want a free country? Eliminate all government licensing and licensing recognized by the government. man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community...

Virginia Declaration of Rights, 1776

Posted by: teapartydoc | Oct 26, 2011 6:43:13 AM

It's a nice idea in principle but is roughly the same in practice as eliminating building inspectors - at its far reaches libertarian turns into a mirror image of marxism, attempting to treat everything in life as an economic function. Getting killed by an uninspected collapsing building and getting sent wrongly to the electric chair (or losing your house or business) as a result of a caveat emptor legal profession aren't minor events that cause market corrections, they are catastrophes with serious human costs. To treat them as mere economic functions denies the humanistic impulse and natural law reasoning that underlies our culture & system of government. There are *people* involved, not just dollars. In the aggregate, a couple tens of millions of horrorshow legal results will eventually sort out the profession. In the interim... carnage.

Posted by: Joe Blow | Oct 26, 2011 6:54:39 AM

Too many laws. Too many lawyers. Just laws are necessary for a civilized society. Too many laws lead to the corruption of a civilized society.

Posted by: PTL | Oct 26, 2011 7:11:06 AM

This is wrong on many, many levels.

I'm a market capitalist. I believe in competition.

But I also believe that which defines "licensed professional" is the fiduciary obligation to the client/patient/customer, an obligation imposed by common law and statute precisely because members of the laity, after making a well-informed decision among professionals competing for their business, must ultimately trust in the professional's training and judgment on matters that, if mishandled by the unqualified, can quite literally mean the life or death of the client/patient/customer.

The notion that legal services are a commodity like widgets, and that our entire licensing and oversight functions are nothing more than cynical barriers to market entry, is despicably short-sighted. And when I read law professors make such arguments, my conclusion is that those professors probably ought not be in this profession at all, and certainly ought not be teaching it.

Posted by: Beldar | Oct 26, 2011 7:31:38 AM

As a non-lawyer in a profession that requires licensing, I don't have any problem with a bar exam. But the state (or other) bar should not be permitted to restrict who can take it, and anyone who passes should be able to practice law.

Posted by: J | Oct 26, 2011 7:32:23 AM

I always wondered about this. If all most small town lawyers do is defend DUI and minor criminal defense, simple divorce, and a little light estate work, why do they need to take mandatory courses on "transnational law?" Law School is for the professors, not the students.

Posted by: Steve | Oct 26, 2011 7:32:30 AM

That argument about Lincoln and Darrow is soft-headed and shoddy, by the way. Each of those men sought the best education available to him in the circumstances, which were very, very different then than any aspiring lawyer's circumstances today.

Posted by: Beldar | Oct 26, 2011 7:41:34 AM

To be clear: I gather that neither Mr. Winston nor Mr. Crandall are lawyers themselves, much less law professors; and I'm not taking shots at Prof. Caron (whose own views may or may not be in accord with what he's quoted in his post here). But there are indeed prominent law professors, including prominent law-blogging law professors, who are endorsing this kind of claptrap and nonsense, and I think what they're suggesting is catastrophically unwise.

Posted by: Beldar | Oct 26, 2011 7:46:21 AM

Why stop with lawyers? My wife says I carve a pretty mean turkey. I've heard that opthalmolgists make $3k per cataract operation and can knock off ten in a morning. I'd like to try my hand. I also got a private pilots license several years back. I'd be willing to fly you to London for less than you have to pay now. Let the market decide!

Posted by: Publius Novus | Oct 26, 2011 8:00:44 AM

As a devotee of Austrian economics (Ludwig Mises, Friedrich Hayek, Milton Friedman), I believe strongly in free markets and competitive enterprise. But the problem is that we are so far down the road of hyper-regulation that it is not feasible to dismantle just one aspect of vastly over-regulated markets, of which the legal economy is just a single example of which there are many, and to expect benefits to flow from that woefully-insufficient, erstwhile "correction". Many, many other aspects of the legal system would need to be fundamentally overhauled to enable the legal market to function freely and fairly. For example, courts would have to discard the rigid time limits, which serve no purpose but to facilitate the court's convenience in managing its workload, so as to spare people dismissal of their cases that otherwise result from blowing a filing deadline of which they are assuredly unaware (e.g., 30 days to file a notice of appeal being treated as a jurisdictional matter, as it currently is). Only properly-trained and experienced lawyers have actual knowledge of the courts' Byzantine rules, and the fiction of "constructive knowledge" would work manifest and widespread injustice to innumerable people caught up in the chaos of massive pro se litigation. So if anyone is serious about eliminating the lawyers' credentialing and admissions processes, they must also be prepared to rewrite the state and federal, judicial and administrative rules of procedure. All of them. From top to bottom. Much can and should be done by the courts to reduce the barriers they have thrown up to keep litigants at bay, before throwing the public to the wolves.

Posted by: Stuart (Austin, TX) | Oct 26, 2011 8:51:43 AM

The authors seem bent on conveying the impression that training in economics is simply training in ideological fantasy.

Since when are the NLJ 250 a "monopoly"? Anyone who has ever practiced law knows that practice is intensely competitive. Indeed, lawyers in private practice are paid on a piecework basis -- it's hard to get more competitive than that. And they face lots of competition from nonlawyers. Unauthorized practice of law lawsuits are rarely successful.

And all that about Abe Lincoln not being able to practice law today. Nonsense. California allows one to read for the bar just like Abe did. Are legal services cheaper in California as a result? No.

The authors advocate moving to the medical model, in which large corporations supply legal services, just as today between 4-6 health care corporations control most of the U.S. health care market. That's supposed to bring down costs and make legal services more available. Do these guys ever read newspapers? What planet do they live on?

The arguments they make would apply equally to doctors. Why are health care costs so high? Apparently because we limit the supply of doctors by requiring that they go to med school and pass a series of licensing exams. Let anyone practice medicine! "A market for information would let consumers identify the chaff more precisely, saving more of the wheat." If someone takes off the wrong leg, he'll go out of business. Yeah, right.

Implicit in the authors' argument is that lawyers don't actually learn anything useful in law school. Bull. We teach more about the real world in law school than Economics PhD programs apparently teach about the real world in economics programs.

Imagine a world in which, when economists give bad advice and people are hurt, those hurt can sue. The reason there is no cause of action for economics malpractice is that there is no standard of care in economics. And that's because there's very little there there. Anyone with a diploma (and even many without) can hang out a shingle and blather on about how, if we just make markets perfect, everyone will be better off.

That's fantasy, not science. I and my students, at least, can help someone structure their business so as to minimize their taxes. Or help someone who's innocent not be put to death. Or help a divorcing mom keep her child.

Posted by: Theodore Seto | Oct 26, 2011 8:54:20 AM

I concur wholeheartedly with Beldar. Attorneys handle matters of such import -- up to and including life-and-death decisions -- that subjecting them to the "free market" would create more harm than good.

That said, I'd like to see things opened up a bit leading up to the bar exam. Virginia (and I guess California) both allow attorneys to take the bar exam after reading law rather than attending a university -- essentially allowing students to take an apprenticeship rather than attend schooling.

I think there's some merit to that model.

Posted by: James H | Oct 26, 2011 9:14:17 AM

Cheers to @Beldar. His humorous post makes a point. If we are willing to remove license requirements to reduce costs and increase competition, the medical industry should be the first target. The costs of medical care drag this economy down much more that legal costs.

Posted by: Scott Brenner | Oct 26, 2011 9:26:57 AM

Who needs someone who passed the bar exam? I bought a software program that does everything for me that an attorney can do. ...Okay, I'm just kidding, but I do use if for standard forms.

This country is going to allow nurses and paramedics to take on the roles of doctors in patient exams, thanks to rationing by Obamacare. It wouldn't be a disaster if paralegals or others qualified in specialized legal services, but not having passed the bar exam, could help keep down legal costs for small businesses and lower income people. Even I know enough to incorporate a business, but that would be practicing law without a license, and I could do it for less money.

Posted by: Woody | Oct 26, 2011 11:01:43 AM

The current system protects the public against neither corrupt lawyers nor incompetent lawyers. We had both in the course of defeating a meritless lawsuit against us. A corrupt local judge was involved as well.

We won by doing our own research, developing our own legal arguments, and writing our own briefs.

Moreover, the suit was brought by a builder with a Class A Virginia contractor's license who could not even read and who openly admitted defrauding not only us, but others who purchased his services as well.

Needless to say, occupational licensing also does not protect the public from incompetent or corrupt business operators.

Posted by: lhf | Oct 27, 2011 3:58:43 AM

I agree with others that the best compromise is to allow those without degrees to take the bar exam. If they pass, they learned the required material somehow, what does it matter where.

Posted by: richard40 | Oct 27, 2011 11:31:37 AM

Yes indeed richard40, although the material they learned may only stick with them for a short time only.

Posted by: Student | Nov 1, 2011 7:53:56 PM