Commentary

Free the Law School Market and the Public Will Benefit

By George C. Leef
April 5, 2003

Going on two years now, the economy is still sputtering and the unemployment rate is close to 6 percent. As students and particularly law school students approach graduation in May, they face an uphill fight in the job market. The law grads also have an extra burden, an average of $84,000 in tuition debt. That debt makes them chase the money, taking jobs in firms that offer higher pay. And the public and non-profit sectors lose out on a large number of those students who might otherwise have chosen to devote themselves to public service.

Law school shouldn’t cost and arm and a leg and another leg. The price is high thanks to connivance between state legislatures and the American Bar Association. If we allowed a free market in legal education, the cost of preparing for a legal career would fall dramatically.

At the beginning of the 20th century, those who aspired to enter the legal profession could take several different routes. One was to study law individually, as Abraham Lincoln did. A second route was to apprentice oneself to a law firm and learn “on the job” as Clarence Darrow did. A third option was law school. Law schools then varied greatly, with some offering a one-year course of study, many offering a two-year program, and a small number of elite schools offering a three-year curriculum.

In 1921, the American Bar Association undertook to “professionalize” legal education. Using the age-old excuse that consumers would benefit from “high standards,” the ABA sought to impose the three-year law school model as the only path into the legal profession. In truth, consumer welfare had little to do with the ABA’s motivation. Many lawyers were complaining of excessive competition that kept fees lower than they desired, and they wanted to restrict supply to raise prices.

To accomplish that goal, the ABA lobbied legislatures across the nation for statutes that would hamstring all kinds of legal study that weren’t in accordance with the three-year law school model. Most states obliged, enacting laws that limited eligibility to take the bar exam to individuals with degrees from ABA-accredited law schools.

Currently, only four states-California, Alabama, Massachusetts, Tennessee-allow graduates of a non-accredited law school to take the bar exam. The ABA’s accrediting body has established standards that keep law school very costly. Among them:

  • Law schools must be non-profit institutions.
  • Law school faculties must be staffed mostly with full-time instructors.
  • Faculty teaching loads must be low.
  • Law schools must have a three-year curriculum.
  • Law schools must invest heavily in library holdings.

Those rules don’t improve student learning. But they do make the obligatory preparation for future lawyers most expensive.

But don’t we need ABA-model legal education to have well-trained lawyers? Actually, no.

The fact is that little of what lawyers need to know is learned in law school. Every field of law is so vast that almost everything is learned Darrow-style, on-the-job. Often, a lawyer winds up specializing in a field that he never studied in law school, and is none the worse for it.

States would do their citizens a favor if they would repeal their laws requiring prospective lawyers to earn a degree from an accredited law school — or any law school — before they can take the bar exam. Deregulation would open up legal education to badly needed competition and innovation. Costs would fall. Schools offering programs of only one or two years, with classes taught largely by adjunct faculty who are practitioners more than scholars, would spring up and grow. More people could afford to enter the legal services market, some of them no doubt providing services to the poor and to non-profit organizations.

Mandating three years of costly law school before allowing individuals to take the bar exam doesn’t protect the public. It just leads to indebted lawyers and higher legal bills.

George Leef, a 1977 law school graduate, is book review editor for the magazine Ideas On Liberty.A longer version of this article will appear in the spring edition of Regulation.