Crossposted
from OpenMarket.org
The New York Times featured an excellent news story
Sunday by David Segal on the costly white elephant that is legal education
in America. He describes how law school is expensive because of
government-enforced accreditation standards that prevent law schools from
containing costs even if they wanted to (and in truth, most law schools are all
too happy to jack up their costs and pass them on to law students and consumers
of legal services): “the lack of affordable law school options, scholars say,
helps explain why so many Americans don’t hire lawyers” when they genuinely
need legal assistance or advice. One reason for that is that lawyers who incur
a fortune in student loans need to bring (or defend) big-ticket lawsuits — even
socially destructive lawsuits — to pay off their loans, instead of providing
badly needed legal advice and assistance to people of modest means, who can pay
less, even though handling their unmet legal needs would be much more
meaningful work for conscientious lawyers. (Certain types
of lawsuits are favored by one-way
fee-shifting statutes that encourage trial lawyers to bring those particular
types of lawsuits, even when the entity being sued is probably innocent.)
The article debunks
the self-serving claim of the chairman of the ABA’s legal education section
that its accreditation standards are necessary to give students “what they
have a right to receive in terms of education” and “protect the public.” It
examines the experiences of a start up law school in Tennessee, the Duncan
School of Law, which is seeking ABA accreditation. The school must have an
unnecessarily big library and professors with tenure and time to write law
review articles. These requirements enrich law professors at the expense of
their students and the public. So, as a couple of former law deans tell Segal,
the professors exert their power through the accreditation process to maintain
the status quo. In the end, the Duncan School of Law’s advocates had to fly to
a beachfront Ritz-Carlton in Puerto Rico to meet with the ABA to make a
15-minute argument for provisional accreditation. The ABA’s questions showed
they were interested in the lawyer market in east Tennessee, suggesting that
lowering clients’ costs mattered less to them than threatening lawyers’ income
— an anti-competitive animus against new, low-cost law schools.
In an earlier
article, Segal suggested a broad reform of law school curriculum, to
replace irrelevant legal theory with practical training on how to be a
lawyer. He chronicled the example of new associates at a law firm who
couldn’t answer the question “when you close a merger, how does the deal get
done?” The answer to that question was to draft a certificate of merger which
then must be filed with the secretary of state. The author attributed that
failure partly to the legal inexperience of law professors, illustrated by a 2010 study
that found that the average amount of practical legal experience among law
school faculty was only one year, and nearly half of the faculty members had
never practiced law.
Segal explained:
Law schools know all about the
tough conditions that await graduates . . . But almost all the cachet in legal
academia goes to professors who produce law review articles, which gobbles up
huge amounts of time and tuition money. The essential how-tos of daily practice
are a subject that many in the faculty know nothing about — by design. One 2010
study of hiring at top-tier law schools since 2000 found that the median amount
of practical experience was one year, and that nearly half of faculty members
had never practiced law for a single day. If medical schools took the same
approach, they’d be filled with professors who had never set foot in a
hospital.
As I noted
earlier in The New York Times,
I learned about trendy ideological
fads and feminist and Marxist legal theory while at Harvard Law School. But I
did not learn many basic legal principles, such as in contract law and real estate
law, until I took a commercial bar-exam preparation course after law school.
Getting rid of the requirement that students attend law school before taking
the bar exam would save many students a fortune in student loan debt. It would
also force law schools to improve their courses to attract students who now
have no choice but to attend.
In short, there is simply no
reason to require people to attend law school before sitting for the bar
exam. As law professor Paul Campos notes, legal
education is a rip-off, since the typical law professor “knows nothing
about being a lawyer. Hence, he must bullshit — he does not lie to his students
about how to be a lawyer (doing so would require him to know how to be a
lawyer, while attempting to deceive his students regarding the substance of
that knowledge); rather, he ‘talks without knowing what he is talking about,'”
when it comes to discussing the legal system or how to be a lawyer.
Law schools’ lack of interest in preparing students to be
lawyers is illustrated by Tulane’s recent decision to give
a murderer a scholarship to attend its law school, even though he
most likely will never be admitted to the Bar given his criminal record.
Law schools lie about whether graduates find jobs: two law schools are being sued for fraudulent
placement data. Law schools have increased tuition by nearly 1,000
percent since 1960 in real terms.
Meanwhile, student loan debt is rising at an exponential,
ever-increasing rate, harming students’ ability to buy homes (and thus, the housing market), and
increasing federal spending on student loans is driving
up college tuition and also harming the economy in other ways.
I am an old man. When I first started as a 22 year old Police Officer in Illinois almost fifty years ago, I met at least two elderly lawyers still practicing, both had been trained as clerks and then taken the bar exam. I am not sure when Illinois began to require a law degree to practice. Seven states – Vermont, New York, Washington, Virginia, California, Maine, and Wyoming – offer law office study as a road to the bar exam.
I just cited this article in my most recent blog post questioning whether higher education is worth it for many people: many students are not learning; many schools are watering down quality; so many programs that teach concrete skills are being chopped; and, the tuition is going up without the same guarantee of a higher salary or even a job. I think there are many other ways to be productive than going into a higher education program, and people should feel comfortable using all of them (including grad school, if appropriate). That said, every time I go to pay my student loans with a paycheck that I earn from a job that I could do without any of my grad school “knowledge” (and I work in the field I studied), I chafe at the amount of indebtedness people take on for nothing.