Paul L. Caron

Thursday, July 5, 2012

Chen, Tamanaha & Olson: Lawyers, Law Professors, and the Guilded Age

Liberty ForumLiberty Forum:

In our time, the free movement of labor, capital, and information has created a global economy that moves by the gigahertz.  In this economic milieu, education is worth what its purchaser can earn with it.  The legal profession, and most of all the educational branch of the profession, owes society a far more practical response than painful expressions of longing for a golden age that never was.  The putative prestige of the legal profession was always as arbitrary and illusory as the promise of gold as an inherent store of wealth.  Lawyers and their teachers must learn that theirs is no longer a professional guild, but a competitive trade.  Legal education is what enables students to earn a living in life, and nothing more pretentious.

Creative destruction often sets in when the economics don’t work, as Jim suggests, and the price of entry to the legal profession today far exceeds the economic return on a law degree for many students.  Something has to give.

I differ with Jim only on one point—his identification of law professors as a branch of the legal profession.  “The legal profession, and most of all the educational branch of the profession,” Jim writes, “owes society a far more practical response than painful expressions of longing.”  “Lawyers and their teachers must learn that theirs is no longer a professional guild, but a competitive trade.”

Jim is correct that the practice of law is a trade and we need to make practical adjustments that acknowledge this reality.  But law professors are not in the same guild as lawyers.  We are members of the academic guild. ... [W]hat law professors do is teach and produce scholarship, and we do so with all the perks and protections enjoyed by university academics—no boss, no clients, lots of free time, and the ability to take up whatever task or topic we desire.  Above all else, we enjoy lifetime job security conferred by tenure.  Members of the legal guild do not have it so good.

There are two answers to the question “What is the purpose of American legal education?”  Many legal academics will say that our primary purpose is to produce knowledge about law and convey this knowledge to our students and society at large.  That answer makes consummate sense from the standpoint of the academic guild.  Most students and lawyers will say, however, that the purpose of legal education is to train competent and ethical lawyers.  ...

A major factor that has contributed to the high cost of a law degree is precisely that scholarly law professors have pursued their guild interests at the expense of the interests of lawyers.  And although Jim correctly identifies the breakdown of the lawyer guild, what he says does not apply to the academic guild of law professors.  Our guild remains robust and, at least until recently, largely insulated from market pressures.

We are in this fortunate position because we adroitly straddle the intersection of the two guilds, invoking one side or the other when it serves our interests.  We have argued, with great success, that we should be paid more than other university professors because we could make more money as lawyers.  And we have used the ABA accrediting process to insure that the bulk of law professors enjoy tenure protection and have ample free time for academic research, which we justify in the name of producing high quality lawyers.

What the future for legal education holds is impossible to know.  We probably will muddle along as long as we can.  What should happen, I argue in my book Failing Law Schools, is produce greater differentiation among law schools. ... For such differentiation to come about, the ABA accreditation standards must be amended to eliminate the requirements that impose the academic model on all law schools.  The culture within legal academia must also change, with more law professors adopting the view that we are indeed members of the legal guild and that our primary duty is to train competent lawyers at a reasonable cost.

For decades it seemed as if the demand for legal services would keep growing indefinitely, and the prosperity of the American legal profession would keep mounting year by year. Then in 2008 came the smash-up, and boom gave way to sudden bust. Does this sequence of events relate to the loosening of the legal profession’s traditional status as a guild? And, in fact, is that status loosening? James Chen’s essay invites us to consider these questions.

One can imagine ways in which weakening of guild control might be eroding the profession’s prosperity. ... Is it even true that the legal profession is losing its guild-like manner of organization? I’m not so sure. ... If I had to guess, I’d predict that five years from now America’s lawyers will be back to a decent state of prosperity, and that a hundred and five years from now they will still constitute a self-regulating guild, envied by civilian outsiders.

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Dear Professor Caron,

I have come to your website through the kind offices of the Instapundit.

With all due respect, I believe that the guild of law professors has, through raising its own salaries, and by attempting a monopoly upon legal education, effectively priced itself out of the market. By raising your own salaries, you and your colleagues have in turn raised the cost of a legal education from $20K (in the 1960s) to $200+K (at present).

Your students and alumni have in turn priced themselves out of their market, by passing along the costs of their legal education to the consumer, and raising their hourly rates. In California, where I live, for example, the median attorney billing rate is $400.00 per hour. As a successful lawsuit requires at least one hundred hours, and more probably several hundred hours, through such lovely time-expending devices as law and motion, discovery, mediation, pre-trial conferences, and the lot, your students have thus created the best system of criminal and civil justice that money can buy.

In consequence, it should not be surprising that the poor and middle class have been using less expensive alternatives, such as legal clinics and Nor should it be surprising that the rich (both individuals and corporations) have been reducing their legal costs by outsourcing, automating and expatriating to other lands where the word 'barratry' does not have only an historical meaning. While I have been infesting my county's law libraries, I have noted that the local legal periodicals here have been bemoaning the fact that major businesses, which have been the source of the big lawfirms' fees, have been leaving my home town. Expect to see the same in your home, soon.

Finally, it should not be surprising that if law professors and attorneys will not regulate their own prices, municipalities, states, and the federal government may soon be doing that for them. At the very least, one should expect to see more states changing their statutes on the 'unlawful practice of law' so as to limit such prosecutions to those who fraudulently represent themselves to be attorneys, as is the practice in Great Britain and the European Union.

Thanking you for the forum in which I have raised such heretical ideas, and wishing you well, I am

Very truly yours,

Bernard Brandt

Posted by: Bernard Brandt | Jul 6, 2012 1:06:35 PM

In this "profession" there are guilds within guilds.

The financial status of the 100,000 or so NLJ 250 lawyers bears little to no resemblance to the financial status of the *other* 1.3 *million* lawyers.

But the academic legal guild of 8,000 or so misrepresents the financial experience of the 8% to lure the other 92% into paying tuitions that fund/justify six-figure-salaries for six-classroom-hour work weeks.

It is a pyramid built out of human skulls.

Posted by: cas127 | Jul 6, 2012 9:13:11 AM