Hans Bader on Abolish Law School Requirement, Keep the Bar Exam?

totmauthor —  20 September 2011

Lawyer licensing should not be completely abolished, but it should be made radically easier and cheaper by abolishing the requirement that lawyers attend law school to sit for the bar exam, and by only requiring passage of the bar exam for those who handle court cases.  Legal redress should also be made easier by allowing more cases to be brought in small-claims courts.

As Clifford Winston and Robert Crandall recently noted in the Wall Street Journal, law students commonly accumulate “as much $150,000 in law school debt” to get the degree required to practice law, even though many “services by lawyers do not require three years of law school” to perform, since they are simple enough to be performed by a non-lawyer.  As they point out, “every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality.”

As a lawyer, I agree that attending law school should not be required to practice law.  I learned little about the law at Harvard Law School.  This was partly due to my own laziness, and partly due to professors whose teaching pointlessly focused on ideologically-trendy but atypical situations, or hide-the-ball Socratic dialogue. (For example, my property instructor was obsessed with sexual harassment of lesbians by tenants).

I did not have to learn much to pass my classes in law school.  I somehow got a “B” in Contracts despite not knowing which body of law – the common law or the Uniform Commercial Code – applied to most of my exam.  I graduated easily despite having frittered away much of my time in law school watching the sitcom “Married With Children,” drinking, or arguing about politics.

But my knowledge rapidly improved after graduation, when I had to sit for the bar exam. I learned more law in two months of studying for the bar exam than I did in three years of law school, including basic principles of law (in real estate and family law) that I was never even taught in law school. To prepare for the bar exam, I took a class offered by a private company, Barbri.   It provided well-organized, concise summaries of the law that were easy to understand, unlike many law school textbooks.  Barbri and the New York Bar Exam ended up teaching me what Harvard failed to teach.

The requirement that people attend law school before being allowed to practice law is unnecessary and wasteful. Many prominent lawyers in American history, like Abraham Lincoln, never attended law school, or even college. They prepared to become lawyers by reading the law on their own, or apprenticing in a lawyer’s office.

Requiring law school graduation as a prerequisite for practicing law just drives up lawyers’ bills by increasing the cost of becoming a lawyer, driving away from the legal profession people of modest means who would make fine lawyers, but are daunted by the high tuition.  The resulting increase in lawyers’ bills makes it harder for people to afford a lawyer when they are ripped off in breach of contract cases, since the amount they recover even if they win may be less than what they would have to pay a lawyer to represent them.   It also makes it harder for people to afford a lawyer when they are sued over meritless claims.  (Some lawsuits are not impeded by rising hourly rates. Certain legally-favored kinds of lawsuits, like employment discrimination claims, can be brought even when lawyers’ hourly rates rise, thanks to one-way attorney-fee-shifting statutes that force employers to pay the entire bill – like state laws that require employers to pay a multiplier of a discrimination plaintiff’s legal bills (see Rendine v. Pantzer), or the federal Christiansburg Garment rule that requires employers to pay the plaintiff’s attorney fees when the plaintiff wins, but does not require plaintiffs to pay the employer’s fees when the employer wins.  For example, a Kansas civil-rights plaintiff received thousands in attorneys fees over $1 in damages.  The explosion in those kinds of lawsuits over the last generation has masked the growing difficulty of affording a lawyer to bring other, more traditional kinds of cases, like individual breach-of-contract cases, for people of modest means.)

Eliminating the requirement that students attend law school to become lawyers would force law schools to cut their exorbitant tuition (which has risen nearly 1,000 percent in inflation-adjusted terms since 1960) and streamline instruction. As Winston and Crandall note, “law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.” Law schools as we know them would mostly disappear, replaced by a shorter, more compact course of studies either folded into undergraduate studies, or lasting just one or two years.  (In many other countries, “law is an undergraduate degree,” showing that you don’t need three years of law school to learn basic legal skills.)  Law schools would have less time left over to waste on ideological fads, and would be forced to concentrate on teaching practical legal skills and black letter law.

Law school graduation requirements weed out few bad lawyers. Even students who seldom studied, and reputedly were on drugs, managed to graduate from my alma mater.  A tenured law professor recently wrote that law school is a “scam,” and that some of his faculty colleagues were “inadequate teachers” who taught the same outdated material, year after year.  My professors in law school were smart, but many were better at publishing or promoting themselves than at teaching (one of them, a leading scholar, used an ancient textbook, and was so lifeless in the classroom that he was like death-warmed-over).  Attending law school doesn’t guarantee a job: two law schools are being sued for fraudulent placement data in class-action lawsuits.

States should discard law-school attendance requirements and only require lawyers who wish to practice in court to (1) demonstrate that they have no record of crime, ethics violations, or cheating, and (2) pass the state’s own bar exam, or the Multistate Bar Exam.  (People who handle in-house legal tasks, especially at insurance companies and other legally-sophisticated entities, should not have to pass any bar exam at all.  Most such people handle only a limited variety of legal tasks, not the entire field of law tested by the bar exam.  They can easily be trained by their employer to handle those tasks.  Their employer knows better than the courts or the bar what knowledge they need to do their jobs.)

Why require even lawyers who practice in court to pass a bar exam and show moral fitness, when many other occupations don’t have licensing requirements?  Because of the power they wield.  Those who bring lawsuits impose huge burdens and externalities on other people, like making time-consuming demands for documents or discovery, forcing attendance at depositions, and threatening people with ruinously large judgments. Lawsuits involve the unstated threat of coercion, such as having your property seized to pay for a judgment against you. Requiring some type of licensing for lawyers helps weed obviously crazy, incompetent, and abusive people out of the legal profession and keeps them from wreaking havoc on the innocent. Passing the bar exam doesn’t guarantee you’ll be a good lawyer, but given how easy it is to pass most bar exams, failure means you would probably make a bad one.

States also need to repeal barriers to people suing on their own in small-claims court – barriers that make it impossible for ordinary people to seek redress in some cases that aren’t big enough to justify hiring a lawyer, leaving cheated people with little redress when they are ripped off to the tune of $5,000 to $10,000. People can represent themselves in small-claims courts, which have simplified procedures, but in many states, such courts can hear only the tiniest legal claims, like those seeking less than $5,000. When Maryland’s legislature passed a bill to increase the maximum amount to $5,000 from a ridiculously-low $2,500, then-Governor Parris Glendening vetoed it, citing opposition from trial lawyers.  (Liberal politicians are indebted to trial lawyers, who would lose income if more people represented themselves in small-claims court rather than hiring a lawyer.  But lawyers’ fear  of lost business may be exaggerated, since if people can’t sue in small claims court, they may simply forego suing, rather than hire a lawyer, who can charge $5,000 just to draft a detailed complaint – more than a plaintiff might recover on a small claim.)

Unlike small-claims courts, which operate under fairly simple rules, the courts that hear larger cases have a bewildering array of court rules dealing with format and procedure that vary from state to state, and sometimes from county to county.  One court may insist that case filings be blue-backed on 14-inch paper, while another may forbid that. Only a practicing lawyer will be familiar with such details, and overlooking them can have ruinous consequences. For example, the Georgia Court of Appeals dismissed an appeal in a $2.7 million case because the appellant used Times New Roman typeface rather than Courier.

4 responses to Hans Bader on Abolish Law School Requirement, Keep the Bar Exam?

  1. 

    A Japanese reader here. I agree with your description of undergrad law major in Japan. It is a sort of liberal arts major just like econ, most of whom do not intend to practice “economics” after graduation. It is interesting to see that you suggest having such a major in the U.S. when Japan finally built postgraduate legal education similar to that of the States.

  2. 

    There should be a general state statute requiring all occupational licensure exams and administration to be run by a government agency rather than privatized– barbers and hypnotists as well as lawyers.

  3. 

    We should also start having law as an undergrad major, as is done in Japan, Korea, and other countries. Law is a great liberal arts major, as it teaches thinking, writing, history, and how to think like other people. It’s also good preparation for jobs like being a transactional lawyer— that’s what a lot of Japanese undergrad majors end up doing.

    Maybe we do this already. Do paralegals get college or junior college training? But I want Yale and Harvard to do it.

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