October 26, 2011

"Are Law Schools and Bar Exams Necessary?"

A NYT op-ed by the Brookings Institution economist Clifford Winston, an economist and a senior fellow at the Brookings Institution. (His book is “First Thing We Do, Let’s Deregulate All the Lawyers.”)
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.

In fact, the existing legal licensing system doesn’t even do a great job at protecting clients from exploitation. In 2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment.

What if the barriers to entry were simply done away with?
By the way, if you want to become a lawyer without taking the bar exam, go to the University of Wisconsin Law School (or Marquette)... and stay in Wisconsin

27 comments:

traditionalguy said...

While we are at it let's do away with licensing of surgeons dentists, pharmacists, and Pilots.

Since when did the NYT become a Ron Paul libertarian clone?

Curious George said...

"By the way, if you want to become a lawyer without taking the bar exam, go to the University of Wisconsin Law School (or Marquette)... and stay in Wisconsin."

And become black.

Bob Ellison said...

This doesn't seem like a difficult question. The bar association is a guild. Guilds pretend to uphold quality but end up protecting access. The bar should have no official power. It might do just fine as a private entity that relies solely on the power of persuasion. Aren't lawyers supposed to be good at persuasion?

Chip S. said...

Is there currently any requirement that you've got to have a law degree to take a bar exam? If so, abolish it.

I'd still offer certification via a bar exam, but make it optional. Without this kind of certification of competence, it seems like entry into the field would be harder rather than easier--established firms would have a huge reputational advantage. But if a firm wanted to take on newbies without law degrees or bar exam as apprentices, why prevent that?

cubanbob said...

One million lawyers and only eight hundred disbarments? I wouldn't toss out the bar exam but I sure would remove the sanctioning body out of the hands of the guild. No if we had loser pays and the attorneys could be held liable for bringing junk suits, that would clear out a lot of the crap lawyers.

Lawyers are supposed to be officers of the court, not gunslingers so if they had professional ethics they wouldn't bring bogus suits to begin with.

Tank said...

To the extent this he is correct (a large extent), it is also true of most of the licensing laws and regs.

A note on discipline. There are many levels of discipline short of disbarment. And if you could read through of representative sampling of ethics complaint, you would see that some large percentage are clearly without merit.

Beldar said...

State bar associations vary quite a bit in how well they handle consumer complaints. Certainly all of them should do better, and there's no doubt that they are doing better, in general, now than they did even 30 years ago when I was admitted to the Texas bar.

But the statistic quoted in this post is not a useful piece of information. Indeed, if most lawyers are following the rules and the bar associations are doing a tolerably good job at self-regulation, you would expect the percentage of complaints resulting in disbarment to be extremely low -- especially because law, like medicine, is a profession in which the client/patient may have bad outcomes despite the very best representation/treatment, and in which there are a correspondingly high number of ill-founded or simply frivolous complaints.

As for the merits of Winston's and Crandall's arguments, I've left a series of comments at Prof. Caron's blog. I think they're full of bull. I'm very, very, very sure that neither of these two PhD economists would seek an unlicensed and untrained doctor to remove their brain tumors or an unlicensed and untrained lawyer to defend them from murder charges. As economists, they belong to a "learned profession" that has essentially no self-regulation at all, and their malpractice, while consequential, almost never results in a patient dying on the operating table or being sent to death row.

I strongly disapprove of those law professors who support this sort of "deregulation." I'm not sure they're fit to be in this profession, and they're certainly not fit to be teaching it.

TCB-n-a-Flash said...

Lawyers are not Doctors.

Steven said...

The exam is at least an attempt to see if you actually know the law. The JD from an ABA-accredited law school requirement is the sillier half of most states' requirements for admission to the bar.

"No autodidacts or alternate education methods allowed! You have to spend all the time and money to go to a law school accredited by the ABA, no matter how well you've mastered the law through other ways of learning!"

The Drill SGT said...

Law might be unique in that in nearly all the invocations of the service, half of the users will be disappointed in the outcome. e.g. somebody has to lose...

Mitochondri-Allie said...

My youngest daughter attended UW Law School for her third year as a visiting student from Florida State. She had to graduate from Florida State and take the bar in WI, even though she was a resident of WI and was practicing here in WI.

It is strange coming from the NYT,agree with traditional guy for once.

Chip S. said...

As economists, they belong to a "learned profession" that has essentially no self-regulation at all...

I consider this an admirable professional inclination to follow its own precepts.

The system of quasi-apprenticeship in medicine takes the form of internships and residencies. The quality certification is performed by hospitals.

In law, the same tasks are performed by the firms that hire and train and then cull associates.

Board certification adds but one thing to the mix. It allows the sort of mentality behind jeremiads like this...

I strongly disapprove of those law professors who support this sort of "deregulation." I'm not sure they're fit to be in this profession, and they're certainly not fit to be teaching it

to wield actual power over an entire profession.

Thankfully, universities are free to hire people as they see fit, and are not ruled by some small group of self-styled protectors of the faith.

clint said...

traditionalguy beat me to it.

In most states, you need a license to cut someone's hair for money. Crazy!

fleetusa said...

We could go to an apprenticeship and post apprenticeship exam similar to MD boards. But to do away with everything would leave many people falling prey to the unschooled and unscrupulous. The state discipline boards would be overwhelmed or the unknowing client would just suffer in silence.

Tank said...

Beldar said...


As for the merits of Winston's and Crandall's arguments, I've left a series of comments at Prof. Caron's blog. I think they're full of bull. I'm very, very, very sure that neither of these two PhD economists would seek an unlicensed and untrained doctor to remove their brain tumors or an unlicensed and untrained lawyer to defend them from murder charges.



Is gov't licensing the only way one can decide whether a lawyer has the training to perform the task at hand, most of which are not as critical as the defense of murder charges? Of course not.

And your kind of reasoning, always expressed in the most extreme terms, is exactly how we get licensing and trade barriers for thousands of businesses.

Joe said...

I've dealt with a few lawyers in my fifty years. I see no relationship between experience, ethics & law school and quality. The highest paid lawyer I dealt with was the most dishonest and overbilled us in such an obvious way that when we refused to pay, the partners in the law firm dropped the matter.

The most frightening thing is learning that I know more about patent law than my current company's "patent" lawyer. (Then there was the lawyer at my previous company who couldn't write worth shit--his user agreement for a feature was so full of holes and incoherent phrases, I still don't understand why he was employed at all.)

Of course, then there's the management non-lawyer person in one company who cut and paste legal agreements. His employee NDA was the longest I've ever seen, contained obviously erroneous material and completely contradicted itself in more than one place.

ndspinelli said...

When I lived in KC and worked for the prosecutors office there were always recent law school grads taking the bar. They would work as interns and have a job if they passed the bar. It was really tense for these folks. The results would come out on Saturday and one of the prosecutors would have a champagne brunch when someone was getting their results. Most of those scheduled brunches were celebrations. However, a couple were like funerals when the person didn't pass the bar.

Here in Wisconsin you just need to schmooze your way through law school and you be a lawyer..a gosh darn good one ya hey!

Beldar said...

@Tank: I reject your attempt to re-interpret what I wrote as encouraging regulation of "thousands of businesses." Use my words, if you don't understand them well enough to paraphrase accurately.

Nor did I argue, nor would I argue, that "gov't licensing [is] the only way one can decide whether a lawyer has the training to perform the task at hand." Bar licensure represents a minimum qualification, not the only qualification.

Misrepresenting what I've written isn't honest. Please be honest in your discussion.

Peter said...

"The exam is at least an attempt to see if you actually know the law. The JD from an ABA-accredited law school requirement is the sillier half of most states' requirements for admission to the bar."

There's a lot to be said for replacing academic credentials in general in favor of a comprehensive exam. The insistence that seat-time (credit hours) is a measure of anything other than an iron butt makes no sense.

So, Wisconsin's "diploma privilege" surely has it backwards. But, I'd also extend that to fields other than law.

Finally, it's hardly news that those who are regulated tend to capture the regulators. It's just that this is effect is more pronounced and obvous when it comes to regulation of lawyers than in most other fields.

Zach said...

When I was in high school, a friend's mother was going to law school in the evenings at UMKC. Not the most prestigious law school, but well suited to her purposes.

If law schools are really providing no value, is there anything preventing a possible competitor from going to law school in name only? Sure you're out a couple thousand bucks, but now you can make a killing undercutting the lawyers who went to law school for real, just like you could if it were completely unregulated. You'll end up spending that much hiring secretaries and paying rent.

There's probably some effect of making people go to law school in order to practice law, but I wonder if such an easily counterfeited credential is that important in the big picture.

Zach said...

Looking it up, I find that UMKC law school now charges $16,000 per year for residents. That's for a real law school, so if you wanted to do a sham education you could probably do it even cheaper.

I've got to say, for all you hear about the high cost of law school, tuition in the KC area isn't that horrible. KU law school is $16,500 a year for residents. I know a lot of people living pretty comfortable lives with a KU law degree.

jimbino said...

As an aerospace engineer, I have worked on design of nuclear weapons, doomsday teletypes, bombers, fighters and ICBMs without ever being certified.

Of course, as a nuclear engineer, you can always find work that doesn't require certification outside Amerika if need be. A lawyer often can't even work in the next state!

Certification is a crock.

andinista said...

The difference, jimbino, is that you had lots of people checking your work, as you checked the work of others. Through peer reviews, design reviews, test plans and procedures, and review of test reports. From fresh-outs grinding through the detailed calculations, through Chief Engineers giving your work the ol' stinky eye at the murder boards.

Whereas, if you're a licensed PE, once you sign off on a design and verify the construction, the law considers your signature to be the last word on the safety of the project. Your continued employment depends on you being right. Because if you're wrong, great damage can be inflicted on people personally and financially.

Steven said...

is there anything preventing a possible competitor from going to law school in name only?

Yes. The laws in most states don't say you need a JD from a law school; they generally say you need the JD from an ABA-accredited law school.

Which currently means, no matter how well you actually prepare your students to become lawyers, it doesn't matter. You must jump through whatever hoops the ABA thinks should be features of a law school. Don't meet them, you don't get accredited. And no matter how well your students learned the law at your un-accredited school, they can't legally take the bar exam.

Your law school has an academic calendar year of fewer than eight full months (excluding breaks and exams)? Your graduates can't take the bar.

Your law school lets students take more than 12 credit hours by distance learning, or any credit hours by distance learning before completing 28 credit hours? Your graduates can't take the bar.

Your law school has a 30:1 or higher full-time faculty to student ratio, no matter how many part-time faculty you have? Your graduates can't take the bar.

Your law school doesn't give full-time faculty tenure? Your graduates can't take the bar.

So your law school doesn't require an admissions test, instead relying on other measures to determine if a student is suitable? Your graduates can't take the bar.

Your law school decides to allow people with an associate of arts degrees start their education in law? Your graduates can't take the bar.

Your law school does not provide active career placement services? Your graduates can't take the bar.

Your law school doesn't have its own law library, but makes alternate arrangements for student and faculty research? Your graduates can't take the bar.

Your law school doesn't provide on-site study space for students? Your graduates can't take the bar.

Which is why there'll never be, say, law school on the model of the University of Phoenix. No matter how well it prepared students for actual practice as an attorney, its graduates would be prohibited by law from becoming lawyers.

andinista said...

If apprenticeship was good enough for John Adams, it ought to still be good enough.

It's unclear to me why it fell into disuse. Probably for lots of reason, especially having to do with the new-found mobility that technological progress enabled.

Don't Tread 2012 said...

I wish they weren't.

The fact is, good legal representation is priceless.

Just ask OJ.

jimbino said...

Sandinista, you have a sanguine idea of how the testing really works. It was I who did the final testing on the last device, a medical device, for which I had written or modified the code, including kernel code, if only to "correct" errors.

If I had introduced errors or had an accomplice who designed in the errors, who would ever know? How the hell would our trojans be discovered in a software spec or high-level design review?

I didn't even have a security clearance when I wrote code for testing nuclear weapons triggers!