Posts Tagged ‘barriers to entry’

More Reason to Increase Legal Profession’s Barriers to Entry

Thursday, April 19th, 2012

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.

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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.

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The solution is to be, not protectionist, but (more…)

Don’t Abolish the Bar Exam — Change It

Wednesday, July 14th, 2010

dilettante

Over on the Volokh Conspiracy, Prof. Ilya Somin has a good post today on whether the bar exam ought to be abolished.  He agrees with Elizabeth Wurtzel that the exam “is primarily a test of memorization,” the bulk of which will be irrelevant to any given lawyer’s actual practice.  We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams.

Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer.  It doesn’t test judgment, reasoning or understanding.  More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.

We remember Prof. Whitebread’s lecture from our Bar/Bri course back in ’97, where he admonished us not to seek a perfect score on the bar exam.  “You only need a passing grade,” he said.  “You don’t need to get them all right; you only need… a gracious plenty.”  And he was right.  The bar is not all that high.  As a barrier to entry, the bar exam doesn’t really do a whole lot.

Prof. Somin would abolish the bar exam, he says, because it keeps out too many lawyers.  “The high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many.”  He is wrong.  The bar exam hardly keeps anybody out.  The profession does not have too few lawyers; it has too few good lawyers.

We usually argue the point from the other angle, when it comes up in conversation.  “It’s not that there are too many lawyers,” we say, “but that there are too many bad ones.”  And it’s true.  The profession has a glut of licensed practicing lawyers who are not terribly good at what they do.  We encounter them on a daily basis.  They’re out there, they’re all over the place, and they make the rest of us look bad.

All they had to do was stick out a few years of some law school and get a barely passing grade, then memorize some of this and some of that and barely pass the bar.  For the rest of their careers, these lawyers will never again have to demonstrate any actual competence in anything in order to remain licensed practicing lawyers.

This is where the bar exam needs to change.  We should definitely abolish the one we’ve got.  It’s just a holdover from the bad old days when (more…)

Is the Law “Elitist?” Of Course It Is. So?

Wednesday, July 22nd, 2009

 

Over at the WSJ’s Law Blog, Ashby Jones has posted an interesting piece called “Is Law an ‘Elitist’ Profession? Discuss.” Ashby saw an article on “The Lawyer,” a British website, reporting that there is little social mobility of lower classes into the legal profession. And he wonders if we have a similar situation in the U.S.

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Obviously, the issues are different in the U.K., where they actually have defined socio-economic classes. People born into the working class tend to stay there. There is a cultural basis for this caste system, which has been the way of things for centuries.

This is further reinforced by the educational system. Children are tested young, and are routed into schools based on their demonstrated aptitude. At age 11, 90% of students have wound up in noncompetitive “comprehensive” schools. The remaining few are admitted to selective schools that accept those whose scores are in the top tenth (or sometimes the top quarter).

The better jobs — not just doctors and lawyers, but also military officers and government officials — are mostly filled by people who got into the selective schools at age 11, and who then went on to get their degree.

Back in January, Prime Minister Brown decided that this has to stop. More people from comprehensive schools need to be represented in the professions and the military. So he appointed former health secretary Alan Milburn as “Social Mobility Czar,” chairing a commission tasked with figuring out how to get working-class students into these higher-class careers.

Milburn’s committee has now produced a white paper (outlined here), concluding that the problem is not so much that schools are selecting the students, but that wealthy parents get to select their schools. His solution is the equivalent of school vouchers — if a community’s schools tend to underperform, then let the parents opt to send their kids to better-performing schools, where they’ll at least have a fair shot of demonstrating their ability.

That sounds like a decent step to us. We’d prefer a system that opens doors, rather than closing them, and the U.K. has a long way to go in that direction. But it’s a good step.

In the meantime, the practice of law in England is likely to continue to be limited to graduates of the better prep schools, whose parents are more likely to have had higher-level occupations, and who share similar backgrounds. Lower-class students are going to continue to have few opportunities for joining their ranks.

And for those who do get past all the hurdles, and get their law degree, prospective barristers still have to get into one of the Inns of Court, get accepted into a chambers, and live on little income for at least the first year. It’s not as if one can just hang out one’s shingle — one does have to break into the club.

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But is that what happens in America? Certainly not. Yes, there are people who have advantages of birth and wealth, who get into schools they might not have otherwise. And there are some kids whose schools are so bad, whose communities are so anti-achievement, whose parents are so uninvolved, that they may never get the chances they ought to have had. But for the most part, the doors of opportunity are always open. When doors are shut, it’s not because the system closed them, but because the individual chose to.

Lawyers in the U.S. come from every walk of life. Some come from privileged backgrounds, others come from (what passes for) poverty. Their parents are just as likely to have been blue-collar as to have been white-collar. A kid can screw up all the way through high school, go to an okay college for undergrad, and get good enough grades to go to a law school. People can go to the finest law schools in the country after spending years pursuing an entirely different career. America truly is the land of second chances. One’s background is not a barrier to entry, here.

Neither is money a barrier to entry. Scholarships abound. Student loans are everywhere. If someone wants to go to law school, the money is there.

Graduating law school is more a matter of diligence than intelligence. A hard-working student of average intelligence is probably going to do better than a bright kid who doesn’t put in the same amount of effort. Ditto for passing the bar. In fact, once you’re in law school, it’s strictly up to you whether you become a lawyer or not.

In America, practically anyone can become a lawyer if they so desire. Put in the time, do the work, and the doors are open.

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Still, there is plenty of elitism in the American legal profession. Some of it is good, and some of it is bad.

The good elitism is that we are as close to a true meritocracy as one can get. You want to get into a top law school? Then earn the best grades. You want to get a judicial clerkship? Then be one of the best law students. You want a high-paying job with a big firm? Then bust your ass and prove yourself. You want the best clients? Then do the best work, and word will get around. No client or employer cares who you are or where you come from; they only care what you’ve accomplished and what you can do.

Frankly, we think the law could use a little more of this “good” elitism. It is, perhaps, too easy to become a lawyer in America. Law schools are abundant — every university wants one, because they are cash cows. Whoppingly disproportionate student-faculty ratios mean lots of tuition and little overhead. If a student is willing to consider a school that’s not exactly top-tier, there is a law school out there eager to accept him.

And passing the bar? That bar is set far too low, for our liking. One doesn’t need to demonstrate any reliable mastery of the subjects, but only a passing familiarity with them. A six-week prep course is all most people need to get a passing grade the first time out. And once a young lawyer has squeaked by with, essentially, a D on the exam, he never again has to take another exam to prove his fitness to practice law. The bar exam is not a fitness test, and never has been. All it has ever been is a mild hazing exercise that we all had to go through, and by gum so are these whippersnappers today. Only as an afterthought does it weed out those few who cannot even manage a passing grade. We’d prefer to have the bar exam require demonstrated competence in one’s area of practice, certify lawyers to practice in that area, and require re-certification every five years.

That’s the “good” elitism. Is there “bad” elitism in our profession? You bet.

Some of it is a holdover from the bad old days when we didn’t let in ethnic or religious minorities, people of insufficient family background, or others who just didn’t fit in. Some of this was outright prejudice.

Some of this, however, was a legitimate belief that a member of a profession must not be in a position where he is working for the fees. A professional’s first and only duty is to the client, so the second he start doing it for the money he has crossed the line — his own interests are now competing with those of his client, and that is beyond wrong.

That’s as true today as it ever was. But in the old days, the principle was applied too ham-fistedly. Instead of instituting ethical rules to ensure that the law remained a profession, and didn’t devolve into caveat emptor shopkeeping, we instituted rules and practices that said “we don’t want anyone who has to actually work for a living.”

This attitude underlay all kinds of barriers to entry. The most significant were the ABA accreditation rules for law schools, which made it harder for evening or part-time students to get their degree, and making it harder for low-income schools to gain or keep their accreditation. Students who had to work their way through school, and schools that catered to working-class and lower-middle-class students, had an uneven playing field. The rules were tougher for them than for the upper-class kids.

Those ABA accreditation standards, by the way, are still in effect. They may have lost their original discriminatory purpose, but that doesn’t mean they aren’t still having an effect on entry into the practice of law. Evening and part-time students aren’t allowed to take enough credits to graduate in three years like their full-time counterparts, and are required to spend more years in school, and their schools have to jump through hoops to maintain the programs. The schools themselves have to maintain expensive facilities, the most expensive of which is an up-to-date law library. All those pocket parts are expensive as hell. (What, in this day of electronic research you thought they could dispense with pocket parts and replacement volumes? Surely you jest.)

The legal profession protects itself. We are the biggest and most powerful cartel you can imagine. We’re the politicians. We’re the judges. We make the laws. We enforce the laws. We control entry into our profession. We regulate ourselves. Nobody else regulates us, makes rules for us, or acts as a watchdog. It’s all us. So these things aren’t likely to change any time soon.

And yet we’ve come a long way. We have a ways to go, obviously, but nobody can seriously claim that the legal profession is closed to people of lower socioeconomic class. Nobody can seriously claim that the legal profession is closed to minorities, or women, or people of a given religion. The door may not be open as widely as it could be, but it’s still open enough to admit almost anybody who wants in.