Tuesday, October 25, 2011

New York Times Op-Ed: Are Law Schools and Bar Exams Necessary?

An op-ed in the New York Times by Clifford Winston suggests that the legal profession could be improved by getting rid of barriers to entry, such as law school and bar exams. The writer states, "The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance." The author charges that rather than protecting quality, these barriers protect lawyers from competition. He claims that if the barriers to entry were be eliminated, costs for legal services would come down, the poor would benefit from lower prices, lawyers would start their careers with less debt, and consumers would have more information. Finally, "if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do."

While this article sees real problems with the legal industry, it goes too far with its solutions. While I am not naive enough to think that lawyers don’t welcome the barriers to competition, the point that law school and the bar exam are needed to protect clients is an important one. Practicing law is not easy. While many people can write simple wills, those people cannot see the serious consequences that the will might have when the testator dies. Anyone can play chess, but only a chess master can see the long-term consequences of each individual move. I practiced law five years before going into teaching, and I can honestly say that I never had a simple case. I certainly do not want a doctor who did not go to medical school and pass the licensing exam to treat me. A few years ago, my father went to his doctor to have the wax cleaned out of his ears. The doctor found a heart value problem that was due to not having enough iron. He now takes iron everyday, and he is in good shape for an 88-year old.

As I have stated several times on this blog, we do need greater legal services for the poor. However, the poor do not need poorly-trained lawyers who will get them into greater trouble.

The writer is also correct that professionalism rules do prevent corporations from offering legal services, and that this is a barrier to entry. However, doctors lack this protection, and medical costs have gone up, not down. Adding businessmen to the provision of legal services creates another group of people who will want to be paid.

While I disagree with his draconian proposals, I do agree with the writer that significant changes need to be made in the legal profession. As we have stated many times on this blog, legal education needs to be reformed so that law school graduates are practice ready. Similarly, the bar exam needs to be reformed so that it tests better for practical skills. One can pass the bar exam without being able to write a will or a contract. Also, as I have argued several times before, there needs to be better legal services for those who have trouble paying for it. Moreover, as I have also mentioned before, something needs to be done about the student debt problem.  Finally, consumers do need more information about lawyers.


Clifford Winston, an economist and a senior fellow at the Brookings Institution, is the co-author of “First Thing We Do, Let’s Deregulate All the Lawyers.”


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