Will American Law Schools Adapt To The Changing Legal Market? Ever? Do They Even Care?

Pearce points out that historically, barriers to entry were erected solely to turn away Jews from the profession. Now those barriers work to discourage blacks and Hispanics from pursuing legal education. Ballakrishnen offered that she thought everybody needed a better grounding in legal education, regardless of their profession.

I agree that discriminatory exclusion is bad, and I concede that there aren’t nearly enough lawyers willing to service poor and indigent clients, but the thought of even more lawyers flooding the market, hanging out shingles, and debating with flight attendants whether the specific performance of opening up the liquor cart is required when you’ve been stuck on a runway for six hours (maybe that’s just me) makes me want to cry.

I think I’m closer to supporting Thomas Friedman’s idea that everybody who goes to law school should have to pay a 15% tax, while everybody who gets an engineering degree should get a 15% tax credit, than I am to supporting the world where everybody has legal training.

Which isn’t at all to suggest that I support the status quo. It’s not like I’m a terrorist who supports the continued price-gouging of would-be lawyers by institutions that amazingly neither prepare graduates to service complex corporate clients right out of the box, nor give them the financial flexibility to service poor clients who need basic legal help.

In addition to completely doing away with the entirely useless third year of law school, I support a two-tier system. You’d have a few, so-called “elite” schools that would continue to train students, much as they do now. Hey, don’t be a hater, we’re very good at training people to become Supreme Court justices and law professors, and there’s no reason to lose that competency. Then you could have another tier of schools that were kind of like one-year practitioner programs. You’d go for a year, and receive instruction on the basics: not just of tort or property, but also things like “this is how you actually file a lawsuit.” And then, boom, you can sit for the bar and get out there and start servicing clients.

Does any school want to sign up to be the first “second-tier” practitioner law school that only gets one year of tuition from would-be lawyers instead of three?

[rickets… the sound of rotten vegetables being carefully loaded into a T-shirt gun]

Well, it’s just one idea. There are lots of others.

But the issue I think most people on the panel and at the conference agreed about was that innovation of any kind in the way we structure legal education in America is frustrated by the ABA. Instead of providing minimum standards or guidelines for law schools to shoot for, the ABA accreditation rules make a high (and largely arbitrary) bar for schools to clear. It manages to be anti-market while at the same time lacking meaningful regulations and protections for consumers of legal education.

It’s really quite a neat trick for a market to be both anti-competitive and poorly regulated at the same time, but that’s what the ABA has a given us.

The ABA doesn’t just prevent new (and potentially low-cost) competitors from entering the market for legal education, it also prevents significant experimentation and competition by those already in the market. If you think about it, the ABA requires every accredited law school to have a model like Harvard — a law school with high-cost inputs, in terms of faculty and capital projects like the school library. But Harvard Law (or Yale Law or Columbia Law or whatever) is always going to be one of the winners if the game is “which law school can be most like Harvard.”

If the goal was “which law school can do the best job of producing practice-ready lawyers,” or “which law school can produce the sophisticated tax advisers of the future,” different winners might emerge.  I bet the law school that came up with the best “sports and entertainment lawyer program” would make a ton of money, even if all they received was one year of tuition. If law schools were allowed to follow their own models, and prospective law students had better information about the different options, more people might win by going to law school. At the very least, fewer people would end up wasting their money and time on educations that don’t lead them where they wanted to go.

And as far as I can tell, the only people who don’t get that legal education needs some kind of structural change are the people in charge of the ABA. The only people who don’t understand that legal education isn’t working for students, employers, or clients are in charge of the ABA. The only people who are resistant to experimentation and market forces are in charge of the ABA.

Unfortunately, it seems like the only people who think the ABA is doing a good job regulating law schools are the people in charge of the Department of Education. Maybe it’s just the government’s way of getting back at all the people who went into law instead of computer science.

An Existential Crisis for Law Schools [New York Times]