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Prof. Shepherd's
Article in Legal Times Spurs Debate on Law Education
10/05/05
Emory
Law Professor George Shepherd's recent article suggesting that law school
should be optional has appeared both in Legal Times and online on Law.com.
The article offers several alternatives to a traditional law education,
including offering one- and two-year programs, and eliminating the bar exam.
Click here
to read the article.
Law School: Make It Optional?
Why
is a Mercedes education necessary for a lawyer seeking a Corolla legal
practice?
George B. Shepherd
Legal Times
10-05-2005
Why are law schools everywhere in the United States
basically the same? Why do they all require three years, rather than one or
two? Why do they all have big libraries that cost $4,000 or so per student per
year? Why do they all hire mainly expensive, full-time faculty, rather than
much cheaper part-time teachers?
The answer is that the American Bar Association's
accreditation standards require these conditions, and almost all states demand
that students graduate from an accredited law school before they can become
lawyers.
The ABA responds that all the requirements are necessary to
train students properly and to protect the public from law schools producing
incompetent lawyers.
The ABA's standards, however, may protect less the public
interest and more the interests of the many law professors, law librarians, and
practicing lawyers who serve on the ABA's accreditation committees. The law
professors and librarians have an incentive to extend law school as long as
possible so that more professors and librarians must be hired, and to require
the hiring of full timers like themselves.
Likewise, the lawyers who serve on the committees have an
incentive to make law school as long and expensive as possible in order to
deter new competitors from entering their profession. Many of the participants
in the accreditation system are public-spirited and selfless. But history has
shown that the ABA and its accreditation committees often focus on helping law
professors, librarians and lawyers, rather than protecting the public -- just
as practicing lawyers have often manipulated bar-exam pass rates to limit
competition from new lawyers. Indeed, existing lawyers obtained both
accreditation and tough bar exams during the Great Depression to reduce
competition from a claimed "oversupply" of new lawyers.
HOW MANY YEARS?
Students should be offered a choice. Those who want three
years of law school -- or four or five -- should be able to get it. But those
who have achieved what they want in one or two years should be able to enter
the profession immediately. Schools should be available with smaller or no
libraries; cheaper, part-time faculty; and cheaper tuition.
Indeed, law school itself should be optional. The states
should no longer restrict licenses to practice law to those who possess a
diploma from an ABA-accredited law school. The bar exam, too, should be
eliminated as a barrier. Although we have grown accustomed to thinking that
accreditation and the bar exam are inevitable, they are not. They are a
relatively recent experiment that has failed.
A world with neither accreditation nor the bar exam as
barriers would have the following characteristics. Some states would choose to
follow the California model, requiring lawyers to still have attended law
school even if not an accredited one.
Without the cost increases from accreditation, the new
schools would offer much lower tuition than present accredited schools and more
flexible programs. The unaccredited schools in California are examples of this.
The Monterey College of Law provides a program of entirely night instruction
over four years. All instructors are practitioners. Tuition is $8,500 per year,
less than one-third the tuition of accredited private schools.
The new schools would offer students broader choices.
Students who hoped to work on sophisticated legal matters at elite law firms
would continue to choose expensive, full-service law schools with large
libraries and full-time faculties. Students who hoped to have legal practices
where they work with individuals on simpler matters, or who hoped to work as
lawyers in local business or government, might choose a more basic law school.
No longer would the ABA force a lawyer seeking a Corolla
legal practice to purchase a Mercedes legal education. Because elimination of
accreditation would free law schools to compete by creating efficient and
innovative new programs, some of the new law schools probably would be not only
cheaper but also better than accredited schools.
The most enlightened states would not require law school at
all: no mandatory law school, no bar exam. Students could choose several routes
into the profession. Some would train for jobs that required simple legal
skills for which law school is not necessary, learning instead through apprenticeships.
Others, who sought both higher-paying jobs in the law profession and more
sophisticated legal issues, would choose to attend law school. A person with a
low-level lawyer's job might choose law school to get a better position. The
market would match each job with a lawyer with the appropriate training.
This would not be a radical experiment. Instead it would
return the legal profession to the system that worked well for a century before
the 1920s. Before then, no state required attendance at law school. Bar exams
were perfunctory and easily passed. Abraham Lincoln became a lawyer without
attending college or law school, and was required to pass only a 10-minute oral
bar exam.
Moreover, it would be the same system that many other
responsible professions, such as business and accounting, now employ. Some
individuals enter business directly, without business school. Others, who seek
higher-paying jobs, voluntarily attend business school. Some enter the business
world immediately for a few years and then attend business school. A person who
seeks work as a manager at her local bank or at McDonald's is not required to
spend two years and $40,000 to attend business school first. Nor is this
individual required to pass any state-administered test.
Employers could choose to hire students with or without law
school degrees. Businesses hire only MBAs for certain sophisticated jobs but
require no business degree for less-demanding positions. Similarly, most elite
law firms might continue to demand a J.D. But smaller firms and small
businesses might be content with cheaper lawyers who don't have a J.D. Or some
employers might choose an intermediate requirement, insisting on a J.D. but
accepting it from the new, part-time schools.
Regardless of whether a state chose to still require
attendance at some law school, elimination of the accreditation and bar-exam
barriers would induce a large increase in the number of lawyers. A large
proportion of the new lawyers would be minorities, who are now
disproportionately excluded.
Despite the protests to the contrary from some business
groups that are frequently sued, the United States has too few lawyers. This is
demonstrated by the fact that lawyers are generally available only for $60 per
hour or more; the insufficient supply of lawyers causes rates to rise. At these
prices, the poor and middle class cannot afford legal services. The price
system instead channels the services of the existing lawyers to the rich.
Obeying the laws of supply and demand, the large increase
in the number of lawyers would be followed by a dramatic decline in the price
of some legal services. Competent lawyers would be available for a variety of
prices, from $300 per hour or more for the finest representation, down to $25
per hour or less for simple tasks. The $25 rate is what qualified professionals
with similar training earn in other fields, such as management of small
businesses, bookkeeping, tax preparation, nursing, carpentry, plumbing,
physical therapy and chiropractic.
The ABA system may protect some consumers from incompetent
or deceptive lawyers, but the benefits of accreditation in protecting consumers
appear to be small. Many lawyers in California attend unaccredited law schools.
Yet California does not appear to have higher levels of lawyer malpractice or
dishonesty.
Moreover, for hundreds of years, ending only in the
mid-1920s, consumers did fine with no accreditation and a perfunctory bar exam.
Many commentators recall a golden age when lawyers such as Lincoln were
responsible professionals.
Furthermore, even if the ABA system provides some
protections, many consumers of legal services do not need it. Plenty of
consumers are sophisticated. For example, whether or not a lawyer graduated
from an accredited law school will have little influence on a corporate general
counsel's choice of lawyers. Instead, as in the many other fields without
mandatory accreditation, the market provides the GC with the necessary
information to make a choice. She will consider the professional reputations of
various lawyers, their experience and information from referrals and
references. In addition, that a certain lawyer is employed by a particular law
firm indicates the lawyer's level of quality; each law firm carefully chooses
only lawyers who reach standards of competency.
However, others, such as the poor and unsophisticated, are
not so able to protect themselves. The accreditation system does help to
eliminate some incompetent lawyers whom they might otherwise hire.
Yet the ABA system also harms the poor and unsophisticated,
and the harms may outweigh the benefits. The system reduces the supply of legal
services and increases costs. The same consumers who would benefit from the
protections of the system might be unable to afford any lawyer at all.
Although the poor are entitled to free lawyers in a narrow
range of criminal proceedings, such help is unavailable in most other
situations. A tenant who faces eviction cannot afford a lawyer. Middle-class
individuals die without wills. Many people who buy defective products have no
recourse. Numerous consumers lack a fair chance to pursue valid claims against
large companies.
If the ABA system ended, the market would adapt by creating
institutions that would protect consumers. One might fear that unsophisticated
consumers would be exploited by unscrupulous tax preparers. Entrepreneurs,
however, founded companies such as H&R Block to eliminate this concern. The
company acts as an intermediary to train each tax preparer, monitor her
performance and ensure the consumer against the preparer's incompetence or
dishonesty.
Although a consumer may not trust an individual preparer in
business on her own, the consumer can rely on the H&R Block institution.
For providing these services, the company earns a markup over the salaries it
pays its preparers. Similar institutions would arise that provide low-cost
legal services.
ATTACK INCOMPETENCE
Mechanisms should be created for attacking incompetence and
dishonesty directly, without excluding people who would make able lawyers.
Lawyers who act incompetently or dishonestly should be punished more severely.
A major reason for the substantial level of attorney misbehavior may be that
attorneys recognize that only the most egregious misdeeds will be punished. For
example, sleeping through a client's capital prosecution for murder resulted in
only the reversal of the client's conviction, with no other punishment for the
attorney. Often, only stealing a client's money prompts any discipline.
Perhaps permitting a guild of lawyers to discipline its own
members is doomed to failure. The guild may protect first its members'
interests, not the public interest. Perhaps responsibility for disciplining
lawyers should be transferred away from bar associations. Perhaps state
governments should hire detectives and attorneys to investigate and prosecute
errant attorneys.
To protect consumers further, states could establish
voluntary versions of the bar exam and accreditation. As in other fields,
states could offer voluntary certification exams in specific legal fields.
Those who passed would receive certificates that would demonstrate to potential
clients their abilities in the fields. For complicated, high-stakes tasks, a
consumer could hire a certified lawyer. For simpler tasks, the consumer could
hire a cheaper lawyer with no certification.
Similarly, accreditation of law schools might continue, but
on a voluntary basis. In order to attract better students, a law school might
choose to obtain accreditation. Other law schools, to reduce costs and offer
lower tuition, would forgo it. Choices for students would broaden. Some
students might choose an accredited institution because the accreditation would
certify to potential employers that these students' education was sound. Other
students would choose to save money by attending an unaccredited school.
Accreditation and tough bar exams are an experiment that
has failed. We should return to the system that will exclude fewer from the
profession, provide would-be lawyers more training choices and empower more
people to obtain legal services.
George B. Shepherd is a professor at Emory University
School of Law in Atlanta.