According to a recent study, the high cost of attending law school makes it hard for government agencies and “public interest” organizations to recruit good new lawyers. You may be inclined to laugh and say, “So what’s the problem?” but the study, From Paper Chase to Money Chase, inadvertently calls attention to the policy in most states of allowing the legal establishment to dictate the details of legal education.
The study finds that the average law student leaves school with debts of more than $84,000 and the cost affects their choice of employment options. With so much debt to pay off, most gravitate toward the high pay of law firms. The public-service sector loses out on a large number of good people.
I take that with a grain of salt. Is it true that government agencies and groups like the Sierra Club have empty desks where they would like to have lawyers? I doubt it.
But From Paper Chase to Money Chase gets one thinking about the cost of legal education, even though it never examines that question itself. Does a legal education have to cost so much?
Thanks to a connivance between almost every state government and the American Bar Association, law school costs far more than it need to, both in money and time. State legislatures, including North Carolina’s, have enacted laws that permit only one path of entry into the legal profession, namely by graduating from a law school accredited by the American Bar Association. That has destroyed the free market that we once had in legal education with a great increase in cost.
In our earlier history, those who aspired to enter the legal profession could take several different routes. One was to study law individually, as Abraham Lincoln did. Another was to apprentice oneself into a law firm and learn what was needed there, as Clarence Darrow did. The third option was to go to law school. Law schools used to differ greatly, with some offering a one-year course of study, many offering a two-year program, and a few elite schools insisting on three years. Notable lawyers had risen into the profession through each of those possible avenues.
In 1921, the ABA undertook to “professionalize” legal education. Using the age-old excuse that consumers would benefit from higher standards, the ABA sought to impose a three-year, high-cost law school model as the only way of gaining admittance to the bar. Actually, consumer welfare had nothing to do with it. Many lawyers were complaining of excessive competition that kept fees lower than they wanted and desired to restrict the supply of lawyers so they could raise prices.
To accomplish its objective, the ABA lobbied across the nation for laws that would hamstring all kinds of legal education that weren’t in compliance with its standards. Most states obliged, enacting statutes that limit eligibility to take the bar exam to individuals who have earned degrees from ABA-accredited schools. Today, only four states — California, Tennessee, Massachusetts, and Alabama — allow graduates of non-ABA schools to take the bar exam. In North Carolina, only an ABA school will do, locking students into costly three-year courses of study. Tuition and fees range from $30,000 at the heavily subsidized UNC Law School to more than $90,000 at Duke. Add to the explicit costs the implicit cost of the student’s foregone earnings and you have a high barrier to entry indeed.
Law schools can compete only within the high-cost standards of the ABA. For example, schools must have a three-year course of study, employ mostly full-time professors with low teaching loads and large offices, and invest heavily in expensive library facilities. Such requirements don’t guarantee superior learning, but merely raise costs.
Isn’t there a justification for the ABA model, though? Isn’t it the case that, given the enormous amount of law we now have, three years of study is barely adequate? Wouldn’t we have under-prepared lawyers if we allowed shorter, less-expensive options in legal education?
No, we wouldn’t. The truth is that very little of what lawyers need to know is learned in law school. Every field of law is so vast that the most a student can do is to become familiar with the main statutes and cases.
Almost everything he needs to know in his chosen area of practice is learned on the job. Not infrequently, a lawyer winds up specializing in a field that he never studied in law school, and is none the worse for it.
Lawyers, like other professionals, have a strong incentive to make the optimal investment in knowledge. There is no need for the government to insist that prospective lawyers spend any particular length of time in formal schooling of any particular kind.
Lawyers will learn what they need to about their field out of self-interest. Their desire to win cases and build a good reputation is a far more effective form of consumer protection than any educational mandate could ever be.
The General Assembly would do the right thing if it ceased propping up the ABA’s elitist model of legal education and allowed a return to the time when the only relevant question was whether someone knew enough to call himself a lawyer, not how or where he learned it.
George Leef is a contributing editor of Carolina Journal, newspaper of the John Locke Foundation.