More Reason to Increase Legal Profession’s Barriers to Entry
When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.
The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”
So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.
It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.
The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.
Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.
Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.
The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.
The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.
This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.
The solution is to be, not protectionist, but elitist. Make it harder to enter the profession, not based on race or class, but on proven ability. Make it harder for the bad ones to get in.
How? You’re never going to dissuade all the misguided folks who continue to go to law school for the wrong reasons (e.g., to make a lot of money, or to get a secure career, or any other self-directed reason, or just because they can’t think of anything else to do). They’re always going to be there. And law schools being the cash cows they are, there will always be someplace willing to take their money and hand them a J.D.
The ABA can make it harder for schools to get accredited, though. Not with the old racist/classist nonsense like requiring the most expensive and inefficient law libraries imaginable (to price out the lower incomes) or obscure residency requirements for students with day jobs. Those old rules and others of their ilk should be canned, because they make it harder for precisely those students who statistically make better lawyers. Instead, the ABA should require schools to meet a demanding percentage of first-time bar takers actually passing the thing. That will force them to weed out students who won’t make it, rather than stringing them along. And penalize schools with huge washout rates, so they don’t accept students who shouldn’t be going in the first place.
At the same time, the bar exam itself needs to be changed dramatically. At present, it’s little more than a memorization exercise. It doesn’t test the things that make good lawyers: judgment, reasoning, actual skills. It’s not meant to — it’s really only a hazing exercise you have to go through to join the club. Once you’ve done it, it’s over, and you never have to prove yourself again.
The bar exam needs to be replaced with a demanding practical examination that requires candidates to prove (1) they know what they’re doing, (2) they can think through the consequences of what they’re doing, and (3) they can make wise decisions. There should be a general exam for new JDs, followed by specific exams required before practicing in specialized fields. And lawyers should be compelled to be re-certified every so many years, to prove they still know what they’re doing.
So a lawyer who wants to prosecute or defend criminal cases might need to demonstrate a working knowledge of the rules and procedures, actual good judgment in hypothetical “what would you do” situations, and an up-to-date understanding of relevant constitutional law. A lawyer who wants to do tax work wouldn’t need to know any of that, but might instead need to be able to demonstrate a basic understanding of individual and corporate tax law, an understanding of the important regulatory processes, and actual good judgment in advising hypothetical clients. Each practice area would have its own certification, required for practicing that field of law.
Make it harder for schools to accept and graduate people who aren’t likely to make good lawyers. Make it harder for those same people to become lawyers and practice. Not to be mean, not to be a jerk, but to ensure that when people entrust their lives at random to a lawyer, there’s a decent chance that their trust is well placed.