Lawyers should not have to attend law school before practicing law

Lawyers should not have to attend law school before practicing law

You don’t need to go to law school to become a good lawyer. Lots of famous lawyers in history never went to law school. That includes Abraham Lincoln, who was a highly-successful lawyer for the Illinois Central Railroad. It also includes other presidents like John Quincy Adams, who skillfully handled a famous Supreme Court case, and Andrew Jackson, who served as a prosecutor. Yet today, most states require people to attend law school before they can take the bar exam and become a lawyer.

Kim Kardashian has expressed a desire to become a lawyer without going to law school, by apprenticing for a law firm. She is in California, one of a few states in which the old method of becoming a lawyer — working as an apprentice, rather than going to law school — is still available. At Slate, Mark Joseph Stern urges “more states” to allow this alternative path to becoming a lawyer. He reasons that “law school is an exorbitant racket that condemns countless students to years, even decades, of crushing student debt. Many young lawyers fear they can only pay off this debt by entering big law, then wind up spending years in a corporate practice that is soulless at best and immoral at worst.” By contrast, he notes, apprenticeships “offer a much cheaper path for law-curious Americans who don’t wish to spend a large chunk of their careers paying off a mountain of student debt. If Kardashian inspires more people to ‘read law’ in the states that permit it, she’ll deserve credit” for that.

People should not have to spend three years in law school before practicing law. Many lawyers have admitted as much. For example, President Obama urged in 2013 that law school be shrunk from “three years” to “two years.”

A 2011 Wall Street Journal article noted that law students ran up “as much $150,000 in law school debt” to attend law school, even though many “services by lawyers do not require three years of law school” to perform, since they are simple enough to be performed by a non-lawyer. As it pointed out, “every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality.”

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As a lawyer, I agree that attending law school should not be required to practice law. I learned little about the law when I attended Harvard Law School. That was partly due to professors whose teaching focused on ideologically trendy topics rather than common legal problems more often encountered in the real world — or professors who used outmoded teaching techniques, such as hide-the-ball Socratic dialogue. (My left-wing property instructor was obsessed with sexual harassment of lesbians by tenants, but failed to teach us basic things about contracts for the sale of land and important rights relating to land).

I did not have to learn much to pass my classes in law school.  I somehow got a “B” in Contracts despite not knowing which body of law – the common law or the Uniform Commercial Code – applied to most of my final exam.  I graduated easily despite having frittered away much of my time in law school watching the sitcom “Married With Children,” drinking, or arguing about politics.

But my knowledge rapidly improved after graduation from law school, as I began studying for the New York bar examination. I learned more law in two months of studying for the bar exam than I did in three years of law school, including basic principles of law (in real estate and family law) that I was never even taught in law school. To prepare for the bar exam, I took a class offered by a private company, Barbri.  It provided well-organized, concise summaries of the law that were easy to understand, unlike many law school textbooks. Barbri ended up teaching me what Harvard failed to teach.

Requiring people to attend law school before being allowed to practice law is unnecessary and wasteful. Many prominent lawyers in American history, like Abe Lincoln, never attended law school, or even college. They learned to become lawyers by reading the law on their own, or apprenticing in a lawyer’s office.

Making law school a requirement to practice law drives up both the cost of becoming a lawyer, and the hourly rate charged by lawyers to ordinary people. It does that by driving away from the legal profession people of modest means who would make fine lawyers, but are daunted by the high tuition. That makes lawyers scarcer and more expensive. The resulting increase in lawyers’ bills makes it harder for people to afford a lawyer when they are ripped off in breach of contract cases, since the amount they recover even if they win may be less than what they would have to pay a lawyer to represent them.  It also makes it harder for people to afford a lawyer when they are sued over meritless claims.  (Some lawsuits are not impeded by rising hourly rates. Certain legally-favored kinds of lawsuits, like employment discrimination claims, can be brought even when lawyers’ hourly rates rise, thanks to laws that require employers to pay a worker’s attorney when the worker wins, even if that “win” was very minor. For example, lawyers for a Kansas civil-rights plaintiff received thousands in attorneys fees after a jury awarded her $1 in damages.)

Eliminating the requirement that students attend law school to become lawyers would force law schools to cut their exorbitant tuition (which has risen nearly 1,000 percent in inflation-adjusted terms since 1960) and streamline instruction. As Clifford Winston and Robert Crandall note, “law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.” Law schools as we know them would mostly disappear, replaced by a shorter, more compact course of studies either folded into undergraduate studies, or lasting just one or two years.  (In many other countries, “law is an undergraduate degree,” showing that you don’t need three years of law school to learn basic legal skills.)  Law schools would have less time left over to waste on ideological fads, and would be forced to concentrate on teaching practical legal skills and black letter law.

Law school graduation requirements weed out few bad lawyers. Even students who seldom studied, and reputedly were on drugs, managed to graduate from my alma mater.  A tenured law professor called law school a “scam,” and noted that some of his faculty colleagues were “inadequate teachers” who taught the same outdated material, year after year.  My professors in law school were smart, but many were better at publishing or promoting themselves than at teaching (one of them, a leading scholar on what law applies in multistate legal disputes, used an ancient textbook. He seemed lifeless and bored in the classroom).

States should get rid of law-school attendance requirements and only require lawyers who wish to practice in court to (1) demonstrate that they have no record of crime, ethics violations, or cheating, and (2) pass either the state’s own bar exam, or the Multistate Bar Exam. People who handle in-house legal tasks, especially at insurance companies and other legally-sophisticated entities, should not have to pass any bar exam at all.  Most such people handle only a limited variety of legal tasks, not the entire field of law tested by the bar exam. They can easily be trained by their employer to handle those tasks.  Their employer knows better than the courts or the bar what knowledge they need to do their jobs.

Why require even lawyers who practice in court to pass a bar exam and show moral fitness, when many other occupations don’t have licensing requirements?  Because of the power they wield.  Those who bring lawsuits impose real burdens on other people, like making time-consuming demands for documents or discovery, forcing attendance at depositions, and threatening people with ruinously large judgments. Requiring some type of licensing for lawyers helps weed obviously crazy, incompetent, and abusive people out of the legal profession and keeps them from wreaking havoc on the innocent.

States also need to repeal barriers to people suing on their own in small-claims court – barriers that make it impossible for ordinary people to seek redress in some cases that aren’t big enough to justify hiring a lawyer, leaving cheated people with little redress when they are ripped off to the tune of $5,000 to $10,000. People can represent themselves in small-claims courts, which have simplified procedures, but in many states, such courts can hear only the tiniest legal claims, like those seeking less than $5,000. When Maryland’s legislature passed a bill to increase the maximum amount to $5,000 from a ridiculously-low $2,500, then-Governor Parris Glendening vetoed it, citing opposition from trial lawyers.  (Liberal politicians are indebted to trial lawyers, who would lose income if more people represented themselves in small-claims court rather than hiring a lawyer.  But lawyers’ fear  of lost business may be exaggerated, since if people can’t sue in small claims court, they may simply forego suing, rather than hire a lawyer, who can charge $5,000 just to draft a detailed complaint – more than a plaintiff might recover on a small claim.)

States also need to simplify court rules. Unlike small-claims courts, which operate under fairly simple rules, courts that hear larger cases often have a bewildering array of court rules dealing with format and procedure that differ from state to state, and sometimes from county to county (like what typeface to use, or whether to number the lines on a page). These rules are traps for hapless people representing themselves, or even some out-of-town lawyers. Only a practicing lawyer will be familiar with such details, and overlooking them can have devastating consequences. The Georgia Court of Appeals dismissed an appeal in a $2.7 million case because the appellant used Times New Roman typeface rather than Courier.

While there is a reason to license lawyers, most occupations should not be licensed at all. Licensing now covers even occupations like “natural hair braiding,” which makes no sense, because “braiding is a very safe practice as braiders do not use any dangerous chemicals, dyes or coloring agents and do not cut hair.” But as the Institute for Justice notes, “in many states, braiders have to endure hundreds of hours of unnecessary coursework and pay thousands of dollars before they can legally work.” Up to 2,000 hours of training can be required.

Occupational licensing has expanded from covering 5 percent of the workforce in the 1950s to over 30 percent today. Now, many people are required to get a license from a state or local government just to cut someone’s hair, be an interior designer, or be a tour guide. Such regulations increase costs to consumers and do not improve the quality of services. State licensing requirements have become so extreme that both the Obama and Trump administrations have criticized them for harming employment and economic growth. The Obama administration concluded that “licensing restrictions cost millions of jobs nationwide and raise consumer expenses by over one hundred billion dollars.” The Trump administration says “the cost and complexity of licensing creates an economic barrier for Americans seeking a job” and “a barrier for Americans that move from state to state.” Excessive occupational licensing also drives up the crime rate by increasing joblessness.

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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