Breaking Up the Law School Monopoly: Part 1

A Two-Part Essay on the University Law School in the American Legal System

“Darwinian theory applies to many other aspects besides the natural sciences: An institution must be understood by the way it developed as well. How did it arise and what have been the stages through which it has passed? Is there any justification for its continuance?” – A.V. Murray, Education, in The New Cambridge Modern History

“I have sometimes asserted that there is no occupation whose total economic product is greater than that of lawyers; and none whose marginal contribution is smaller.” – William J. Baumol

Preface

The American Bar Association runs the U.S. law school scene as a cartel. Ironically, it has established a rigid, standardized curriculum under a regulated, effectively fixed “civil code” format, despite our legal system resting on common law. I argue, instead, for just such a “common law” solution, which has been overlooked in its application to legal training.

By common law, I mean a broad, open, participative system that can bypass institutional barriers and play a key role in a capable republic, rather than serving special interests confined to the law industry. Common law is not only “judge-made” law; more centrally, it is a process that rests fundamentally on you—the individuals who bring from their lives the raw materials, or as philosopher Karl Popper termed it, the “vital substrate,” of individual and social experience and interests.

This is a view of law that is integrated with society, rather than autonomous from it. If law is considered “autonomous,” or de-linked from other disciplines and practices as if it were an entirely separate phenomenon, then, as former federal judge Richard Posner explains, “improvement is impossible.” Why is this? Because outside facts and context must provide the operating reality that informs and educates law’s otherwise rarified isolation.

This is the true link between law and politics, because it underscores, as John Stuart Mill articulated in his “Considerations of Representative Government,” the two central pillars of participation and competence, which grow as complementary skills. Oxford law scholar H.L.A. Hart was right: law is too important a thing to leave to lawyers. As a matter of legal philosophy, I do not divide law into formalism and politics, or suggest a legal populism, but look at law, and law training, as an industry business system. Part 1 of this essay first provides some broader industry context; Part 2 then provides a suggested reform.

Part 1

In 1939, Yale Law professor Fred Rodell penned an essay (inspired by Luke 11:52) titled “Woe Unto You, Lawyers!” where he asserted that practicing law should be a crime. The essay was, as he put it, “A lusty, gusty attack on ‘The Law’ as a curious, antiquated institution which, through outworn procedures, technical jargon and queer mummery, enables a group of medicine-men to dominate our social and political lives and our business, to their own gain.” But in his American, period vernacular, he put his finger on the source of the problem: the law schools.

The hope of The Law – that is, the hope of the lawyers that their game will go on indefinitely, undiminished and undisputed – lies with the law schools. And conversely, the one slim hope that the big balloon of inflated nonsense may ever be exploded by internal combustion lies with the law schools too. Once the professional gibberish-jugglers have proceeded beyond the training stage, it is almost always too late. They have to be caught young-in-The-Law to be turned into disciples – or heretics.

While the essay is obviously dramatic if not entertaining, Professor Rodell may have sensed something then that we seem unwilling to confront today: There is a legalist epidemic in America among lawyers, law professors, legislators, and judges.¹ This includes law school graduates, many deep in debt and disillusioned about the law industry’s priorities: perpetuating its stranglehold on legal access and provoking contention and division for financial gain. As the old saying goes, “one lawyer in a town will starve, but two can make a good living.”

[Related: “Be Quiet So You Can Hear the Free Speech at Yale”]

Many current and future law students, however, are wondering if a “good living” is still feasible and are finding out that the job market is shaped more like an hourglass: there is a small percentage of lucrative careers in the thin neck of the industry, while the vast majority work in the “lower” segment of routine, effective paralegal work or government staffing. Some graduates wonder what they paid close to half a million dollars for, after tuition, debt, living expenses, and foregone income (the legal services that most people, families, and small business need are precisely in the paralegal segment, which I discuss in Part 2).

In 1951, there were 221,000 lawyers in the U.S. In 1991, that number rose to over 800,000. Today, there are more than 1.3 million, a far greater proportion relative to the population than that in any other country. According to Stanford legal historian Lawrence Friedman, lawyers have “multiplied second only to rabbits and the prison population,” while the highest levels of professional wage inequality include those in the legal industry. In litigation alone, the U.S. spent nearly $23 billion on lawyers in 2020, and among households and businesses, we spend over twice the global average. Within the federal government, rank-and-file “general attorneys” number over 26,000 and counting, costing U.S. taxpayers over $3 billion per year—since 2007, the total bill exceeded $26 billion. It’s “Uncle Sam, Esq.” ²

What has been called “The American Illness” of runaway legal bureaucracy contributes to over 100 million lawsuits being filed in U.S. state courts every year, plus an additional 400,000 federal lawsuits, costing taxpayers over $6.2 billion annually. Our courts are bursting at the seams, with backlogs of cases waiting to be heard and assigned cases often taking years to resolve, even for simple contract disputes. This is unjust, as the legal machinery becomes increasingly bogged down and unaccountable. Judges don’t have time to research and deliberate most cases, and many court orders and rulings don’t include reasoning and explanations.

One shouldn’t completely discount the potential positive aspects of litigation in American democracy, but this potential is overwhelmed by the law Bar’s exclusionary monopoly that limits legal access. Other complications include case load and judges’ worry about stepping outside the safer path of relying on prior rulings,³ rather than examining in detail new facts, data, science, and context. This may require them to make a determination and judgment, rather than merely a reference to another case which may have nothing to do with the facts in front of them (this is not the same issue as the “living Constitution” ideology, which seeks to judicially invent laws based on personal values).

Take, for example, a recent case from university students concerning their right to personal health management.  It was rejected by one of the University of Chicago’s well-known law school lecturers and senior federal appellate judge Frank Easterbrook, when students of Indiana University appealed to his federal circuit court concerning mandated vaccines. Perhaps unsurprisingly, he casually referred to an old 1905 case in Massachusetts, Jacobson, as a “precedent” and declared the students’ objections null and void: there is no constitutional right of refusal acknowledged (despite mounting widespread risks including blood clots, stroke, and sudden arrythmia). His decision was announced in a matter-of-fact manner, with little if any resources brought to bear on how different the students’ case was from the 1905 case used to summarily dismiss it. (The lawyers representing Indiana University who sought to enforce vaccine compliance should have known that their position violated the Constitution and harmed students, but a wealthy state university was the client, with nearly unlimited billing opportunities if litigation and appeals were undertaken. This case also created new “precedent” that reinforces the Bar monopoly, with its often non-factual accommodations, in order to reinforce judicial continuity.)

[Related: “Go Ahead and Kill the LSAT”]

The culture of “adversarial legalism” also extends directly into politics, where law academicians feel especially at home—and privileged. While they love human rights activism and social justice, they hate the U.S. Constitution, as it is designed to do the one thing they especially resent: keep the State out of your private life. If there is a cult of big government, it is the law academy, which acts as the state legal mill and laboratory. This includes one of the law academy’s favorite obsessions: the Supreme Court, which is shadow-judged emotionally by law professors according to the degree to which it comports with their progressive ideology. This has a pronounced effect on their ability to maintain objective teaching standards, which is a specific regulatory duty of the law school system (the law academy’s real bible and constitution often appear to be The State and Revolution by Lenin and Zhu Qianzhi’s Philosophy of Revolution).

What is the way forward? To paraphrase Oliver Wendell Holmes, Jr. in The Path of the Law, get the dragon out of his cave in plain daylight, count his teeth and claws, and then either kill him or tame him. We should also look afresh at what we mean by competition, and what competition means to change and modernization. The admirable Walton Hale Hamilton put it this way:

In some form or other the rivalry of men will continue to be employed as an instrument of the general welfare. It is not important that the arrangements which currently are set down as the competitive system will endure. It is important that the spirit of competition shall be enhanced and not impaired. There must be an outlet for the creative urge, free play for the dynamic drive. In a society, as in the physical world, motion is inseparable from life.

In Part 2 of this essay, I will discuss what an effective common law solution to law training might look like, including how the “law gap” may be narrowed.

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