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The Twilight of the Guilds: Law Trembles on its Throne

The evidence is becoming clearer every day: the legal profession has some big changes coming its way. An op-ed in the New York Times asks whether law schools and bar exams are necessary at all:

What if the barriers to entry were simply done away with?

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

At the same time, 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. These firms, in turn, would have to reduce prices to compete.

Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.

The author raises some good points, and is joining a growing chorus of people on both sides of the political spectrum calling for major reform to the legal profession. Legal costs have risen dramatically over the past quarter century, and legal fees and expenses are consuming a growing chunk of corporate and individual budgets that could be better put towards more productive ends. Anything with a chance of reversing this trend is worth considering.

Although I certainly don’t believe that law schools should be done away with entirely, there is merit to the idea of loosening industry-imposed restrictions that prohibit non-law school graduates from practicing law. Although some aspects of law are extremely complicated and may necessitate years of concentrated study under the supervision of a professor, there is no reason why many of the ordinary and mundane aspects of law cannot be performed by someone who is self-taught through a series of online courses, especially if this study is supplemented by practical experience.

Perhaps we are looking at hiving off many of the functions now performed by lawyers and setting up more para-professional certification processes that are exam based.  You pass the test and you get a license to practice certain aspects of what traditionally has been the legal profession.  We may also be looking at making bar exams a little more demanding in terms of requiring more than simply technical knowledge of the law, and opening the profession to anyone who can pass the test.

There will always be a market for elite lawyers, and the majority of these will continue to come from top law schools. But there is no reason that the legal profession cannot accommodate more competition at other levels. If it can bring down legal costs, it would be a step well worth taking and, assisted by good software programs, many people can get their routine legal work done with no human help or much less than in the past.

This is a good thing, not a bad one, and society needs to capitalize on the potential for cutting costs and raising social productivity that a streamlining of the legal profession could produce.

Abraham Lincoln never went to law school and he turned out pretty well.  And there are a lot of shysters and cheats who have engraved certificates from prestigious schools hanging on their walls.  The legal guild, like other closed professional shops, needs to change.  Price pressures will make that happen, and soon.

All this, of course, is only an early stage in the restructuring of legal institutions.  Beyond the question of how is the profession defined and who gets to practice is the bigger question of how does the legal system as a whole change to take advantage of the cost saving potential of IT.  But now that the Gray Lady has broached the subject, expect the pace of change to pick up.

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  • Kris

    But being a lawyer is practically a prerequisite to becoming a politician! If anybody can become a lawyer, then…
    Never mind.

  • Toni Mack

    Change may make sense, but it would gore the oxen of all existing lawyers, and they will fight change as if they were Old West ranchers whose oxen are mortally threatened.

    Trial lawyers are among the Democrats’ biggest donors — perhaps their biggest donor source — and I can’t see Dems trying to sap lawyers’ income in statehouses or in Congress.

    Notably, neither the op-ed author nor Prof. Mead tries to explain the practical steps that would, in the real world, end in legal deregulation.

  • Chase Crucil

    Professor, interesting post. The only thing I would like to say is response is that you make it seem like a cheaper law school education is something that will happen in the future. In fact lower cost options are already available, especially if the student is willing to consider public law schools outside of large cities. The University of Arkansas, for example, charges around $10,000 a year for in state students. And while starting salaries for their graduates might seem a little low, it is counterbalanced by a cost of living that is much lower than in the northeast.

    here is a list of low cost law school.

  • Richard S

    There’s also no reason why law school has to be 3 years everywhere, or perhaps anywhere. If people are free to take the bar when they wish, then the length of time people spent in law school would also drop, lowering school debt, and, probably, the numner of law professors, too. A win-win.

  • lhf

    The public is not protected from corrupt or incompetent lawyers by current licensing requirements. I think there should still be an exam but open to anyone who wants to sit for it.

    Something also needs to be done about the current system for complaints against corrupt or incompetent lawyers. The state bars almost never discipline lawyers and connections among lawyers work against consumers who file complaints. We had a really egregiously corrupt lawyer and judge in a lawsuit we were involved in. We had documentation to corroborate events yet we were advised not to file a complaint with the state bar because if the complaint was dismissed, we could be sued. The other lawyers who witnessed the behavior were reluctant to file a complaint because of threats to retaliate by the corrupt lawyer. Even if retaliatory complaints were without merit, time would be wasted (in their view) defending themselves.

    I understand the need to weed out meritless complaints, but consumers are at a distinct disadvantage in these circumstances.

  • Norman Roberts

    This is established practice in at least one field. The Diocese of Dallas has for a number of years employed a para legal who practices immigration law. He is not a lawyer but is allowed to offer legal advice on immigration matters, and to represent clients in Immigration Court.

  • dearieme

    In much of the world a law degree is done as a first degree, not a postgraduate degree. That keeps down the cost of training as a lawyer. Of course the habit developed when secondary schools gave a better humanities education than American High Schools can be expected to deliver now.

  • palinurus

    Yes, we all know the legal profession must change, and is changing. But there are several countervailing or other important considerations involved.

    First, the current trends toward complex federal and even state regulatory schemes — think 100 page statutes, with tomes of regulations, and even more case law interpreting them — increases the need for and cost of lawyers. This ain’t Lincoln’s world anymore. Much of the law is not simply not transparent, but painstakingly opaque and obscure; these statues are, if nothing else, stimulus bills for the legal profession and law schools. Sure it would be nice to allow paralegals to draft wills and simple contracts (which many do, in any event), but how much would that counterbalance the costs entailed by the expansion in the volume and complexity of the law.

    Second, beware of thoughtlessly repeating the cost-savings-from-IT mantra. While IT has decreased some costs, it has increased the complexity and cost of legal services in many other respects. Not only are there more cases on the virtual books, but corporate records have multiplied exponentially. One of the greatest costs of litigation is eDiscovery, sorting through the enormous volume of emails, archived documents, etc. that exist. This problem is compounded by the fact that this process is governed by rules written for paper discovery. Thus IT has spawned a booming practice in meta-litigation, litigating discovery disputes rather than the merits. Another new cottage industry is advising corporations, even small to medium sized ones, how to manage their electronic records to comply with various record keeping requirements.

    Finally, the law is a profession, and a profession central to a regime that is founded on the rule of law. The law does and should encompass more than merely technical advice. This extra-legal advice should be informed by some legal values, that is, advice that goes beyond the client’s business interests and is informed by some concerns for the “law” generally. I’m getting at the whole, lawyer-as-an-officer-of-the-court thing; and if you want to slam lawyers for having abandoned this, you’ve made my point for me. What will be the effect of Ford-izing the law, or reducing it from a profession to just another job, on our legal and political regime?

  • Hear ye Hear Ye

    The NYT didn’t break any news here. This is coming and has been for a while. I agree, that there is a real need for legal services that do not require a lawyer. Just like Nurse Practioners who can prescribe medicine, deliver babies, perform routine exams, etc. So should one not need a “lawyer” to make a simple will or draw up various contacts, etc, etc.

  • Luke Lea

    “Every profession is a conspiracy against the public.” George Bernard Shaw, if memory serves.

  • duckfan

    These reforms would be welcome, but would not address the factors that are driving demand for legal services — the explosion of attorney’s fee clauses in statutes. They cause thousands of frivolous lawsuits to be filed, and in most cases, juries aren’t told that if they award $1 in damages, they are also awarding hundreds of thousands in fees. We should return to a pure American system, where each side pays its own way. That would cut down on litigation, reduce demand for lawyers, and reduce legal costs overall.

  • Steve Smith

    The need for more affordable legal services is a result not of a shortage of lawyers to be remedied by lowering the thresh hold for entering the profession, but rather the politicization and resulting complication of nearly every endeavor in life. The real change needed is a wholesale reduction in the verbiage of the rules of life. More than we need more warm bodies charging the masses for interpreting Article 2 of the Uniform Commercial Code or the Tax Code, we need rules simplified so that in the vast majority of cases normal people can sort out their own problems on their own or in small claims courts. If anything, with the caliber of lawyers graduating these days that can’t pass the bar until their fifth try, we need higher standards for entry.

    If you guys haven’t noticed, attorneys wield a great deal of power and if unbalanced can cause a great deal of harm. Legal work isn’t on the same plane as working on an assembly line or even being a professor. Because of the relaxed standards and inability to police themselves, the current glut of lawyers competing for fewer and fewer dollars has turned a legal system that was once an envy of the world into what it is today. Being a lawyer should be a privilege wherein the lawyer is held to standards above common commerce. It is not, and never has been, merely an occupation. As it becomes so, we all will suffer.

  • Robert L. Freedman

    Prior to around 1930 (in at least Pennsylvania) a layman could become a lawyer by apprentising himself to a practicing lawyer for several years and passing a test, without going to law school and even without going to college.
    The solution is not to obviate the need for forml education, but twofold.
    First, for several decades many have thought that law school should be 2 years rather than 3,perhaps with the 3rd year optional, because law students learn what they need in 2 years; the courses in 3rd year are unnecessary. The only real reason this has not happened is that some law professors would no longer be needed and they want to protect their jobs.
    Second, statutory law and regulations should be written in less complex ways. The average intelligent person should be able to read a statute or regulation and understand it. But many lawyers and regulators like complexity because it helps preserve their jobs. So our statute books become longer and longer, to the detriment of the public.

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