The Ethics of Law School Tournaments

I agree that the law students who took out those loans should have engaged in a better cost benefit analysis. Still, I law firms were telling lower tier grads that they could secure jobs at big law, government and other places when they never stood a chance.
In today’s climate, your wife would still have a pretty good shot at her current career path as a magna from Georgetown (though perhaps not so much at the clerkships, because many students who would have gone straight to biglaw may now be vying for clerkships, thus making the market more competitive). But what if she was a magna from Catholic or University of Baltimore or other lower ranked schools? I don’t think she’d stand a chance – though at least, she wouldn’t have much debt because of her job.

Dear Mr Carey

I frankly have been SHOCKED by some of the responses to Segal’s piece by supposed American legal “Professors” and other American legal “scholars” who quite simply do not know AT ALL what they are talking about, lack any conception AT ALL of the history of the matter, and MOST STUNNINGLY: show no desire to LEARN and READ up on it before talking.

I find your comments here to be slightly different than that, but nevertheless I thoroughly disagree with your characterization of law schools as a “tournament”. As an American citizen, living in a republic, my right to PRACTICE my law is not a “tournament” AT ALL, sir. And lower-tier schools are not offending anything with their high prices — they are merely an outcome of creating one of the developed world’s most hideous and most venal forms of legal training — that no one likes, it would seem. (Our nearest competitor for that trophy, in my estimate, would be Germany — by they match their cartelization with price controls, which we do not do, but that soften the blow.)

I must say, though, that I found Segal’s story very funny. That, more or less, that what we need to do (according to him and other American “legal” “experts” in his story) is further choke the supply of lawyers in America in order to pad American lawyer wallets further. They don’t even care about how that will not only further tremendously kill legal access/access to lawyers in America, or further hurt American businesses struggling under over-regulation, who have to deal with over-regulation constantly and need lawyers to now effectively function in the 17%-plus unemployment-ridden American economy, et la etc, but they are going to do all this — create all this pain — do the functionally-equivalent to organized robbery *just* to pay off their student loans. Morally bankrupt, if you ask me, but hilarious too because it’s like so what you are going to do is further increase cartelization and restrict Americans from practicing their own law, so as for the single reason that Americans lawyers can boost their paychecks IN ORDER to pay off their enormous student loans THAT exist in the first place because you cartelized the whole profession 60 years ago.

If that’s not funny, what is? But this is clearly why many people call our country crazy.

At any rate, I include below for you my famed report on the history of the American legal training system. You will no doubt get a kick out of it.

Also, I have contacted as well Professor Henderson who assures me that his line on closing lower-tier law schools was taken completely out-of-context by Segal.

Report: -

Could Honest Abe Make It As A Lawyer Today?
By: Thomas Cheplick

Could Abraham Lincoln get into Yale or Harvard Law today? According to legal historians and experts, the answer is a clear no.

Today’s legal training system weeds out some of the best minds, critics say.

“I do think the days of Lincoln are over,” said Robert Gordon, professor of law and legal history at Yale Law. Gordon also sits on the Yale Law admissions committee and is recognized as the eminence grise of U.S. legal historians.

Alberto Gonzales, the 80th Attorney General and the first Mexican-American to occupy the post, thinks the United States still produces some of the world’s finest attorneys, but he’s also not certain of Lincoln’s chances at making it as a lawyer today. “We have one of the best legal training systems in the world,” Gonzales said. “But I don’t know if Lincoln could do it today. He might. We certainly have challenges.”

The requirements for admission to the bar have become so strenuous that nearly 7 in every 10 Americans are now automatically ineligible to become lawyers in their own country. Many analysts blame these requirements as the main culprit thwarting the rise of a future Lincoln. For example, admission to an accredited law school now requires an undergraduate degree, a diploma that over 70 percent of Americans do not possess.

Clint Bolick, a noted legal scholar at the Hoover Institution at Stanford University, thinks President Lincoln — a poor farmer who could not afford to go to college or law school — would stand no chance at becoming a lawyer in 2010 America. “Abraham Lincoln absolutely could not become a lawyer in today’s environment,” Bolick said. “Our present system is absolutely appalling. It seems more calculated to restricting the supply of lawyers than serving the public.”

How It Was In Lincoln’s Day

Gordon explains how different America’s legal training system was during the time Lincoln was alive.

“In the old system in America for most of the 19th century, there were no barriers to entry to the legal profession, no law degree required, and certainly no university degree required. Many states just wanted an apprenticeship [internship], which would involve finding a lawyer to apprentice under, and in many states all you had to do after was a pass a brief oral examination by a sitting judge. In a few other states, there were other requirements, like did you have good moral character, and you had to meet some resident requirements. The old system produced many able and good lawyers. In many ways, it was a very democratic system: no bar associations, and no bar exams to restrict admission,” Professor Gordon said.

Gordon explains that the legal profession started becoming more elitist in the 1880s, with Harvard Law and the private sector American Bar Association (ABA) leading the way.

“In the 1880s, Harvard Law led the pack demanding the college degree, and the three-year law degree as prerequisites to becoming a lawyer. The ABA adopted this as its credentialing standard. Had this credentialing standard been instituted nationwide in 1900, only 2 percent of the population would have been eligible to be lawyers, but it did not happen. The legal profession from 1900 to 1930—almost half of it came from people reading the law and apprenticing, or who graduated from night law schools. The ABA tried to close night law schools, but their efforts failed, and one of the main reasons was because most immigrants in America who became attorneys then, and also most of the working-class legislators in country who became lawyers then, most of them went to night law schools and would have none of the ABA’s efforts to shut those schools down,” Professor Gordon notes.

It was only after World War II, explains Gordon, that the LSAT exam was introduced and strenuous requirements and bar exams were put in place nationwide. The new standards were modeled after similar efforts by American doctors in the 1900s; they caused less of a furor in the 1950s because more Americans had university diplomas by then, he added.

“Essentially, doctors did what the lawyers wanted to do. Around 1900, the doctors succeeded in closing all but a few medical schools. The schools producing orthodox doctors shut everybody else out of the profession. The elite lawyers who created the ABA and the American bar exam hoped to do the same for the law, but they did not succeed with their education and exam requirements until the end of World War II. But by that time, the G.I. Bill had made possessing a university degree not as exclusive,” Gordon points out.

Bolick notes that the new legal training system envisioned by the ABA was designed with one client in mind: the ubiquitous Man in the Gray Flannel Suit. “This credentialing system serves the interests of big corporate firms. It is designed for them. If you want to be a community lawyer, if you want to help poor people with their legal problems, going through this system does not yield that sort of lawyer because it was not designed for that,” he said.

The current legal training system got a further boost by the U.S. federal government in the 1960s, according to Professor Gordon.”In the 1960s, for a lot of government jobs, people with Ph.D.’s were eligible for higher pay, and lawyers with their L.L.B.s working for the government said: ‘What about us?’ So they got changed their L.L.B.s to J.D.s and got the government to classify the J.D. as a Ph.D for them,” he said.

Problems with the Post-World War II system

Gordon is not confident that the requirements instituted primarily after World War II, which prohibit most Americans from ever becoming lawyers, have produced better lawyers or raised competence in the bar.

“Am I confident, having raised the education and training requirements, we have also raised the average level of competence in the bar? I can’t say I am,” Gordon said. “The selection mechanisms are very crude. The LSAT exam, for instance, was introduced for fairly noble motives to democratize institutions, but as things stand now, the most important thing to entry to the legal profession is your LSAT exam score, because your LSAT score determines what level of law school you get into, and if you get into one of the top law schools, your degree there will lead to a salary that will pay you enough to pay off your student loans. But if your LSAT score is low, and you are only able to gain entry to a low-ranking law school, your likely salary upon graduation will not be enough to service your student loans. All of that is determined by your LSAT score. And yet nobody has been able to ascertain if performance on this one single standardized test correlates with the actual abilities people need to practice law.”

John Eastman, dean of Chapman University’s School of Law, also is unsure about the lawyer credentialing system instituted after World War II, and thinks it is unreasonable and inaccessible.
“I am generally opposed to government licensing in areas beyond public safety, and as a result I think our current system—mandatory law school in most jurisdictions, followed by a bar exam that has little relevance to practice—is unduly restrictive,” Eastman said.

Gordon explains that the bar exam was not designed to ensure that only capable individuals like Abraham Lincoln were allowed into the legal profession. Instead, it was created to restrict admission based on the whims of the economy and demographic prejudices.

“The main purpose of the bar exam is to restrict entry, and in fact, passage rates of the bar exam almost all tend to vary with how many urban lawyers the state has. California has low bar exam passage rates because a lot of people like to retire there, so California devised their bar exam partly to keep older lawyers out of the state. Whereas you see in mostly rural jurisdictions, like Montana, passage rates tend to be very high, they are not trying to restrict entry to practice there,” Gordon notes. “As well, historically bar passage rates always go down in times of recession and depression because existing lawyers face a lot more competition and do not want to cope with a new generation of hungry lawyers fighting for whatever business is left.”

Bolick thinks if the bar exam were changed into a pass/fail test, Lincoln and other capable individuals might stand a chance at becoming a lawyer in today’s America.

“I would like to see the bar exam become a pass/fail exam so the score cannot be manipulated to affect the supply, but I do not think that bar exams test competency to practice the law. Indeed, right now, if you pass the bar exam—for that moment in time—you managed to preserve in your brain substantive knowledge in a vast area of subjects, most of which you will never again be called to regurgitate and use in any meaningful way. So would I want a pilot who passed the equivalent of a bar exam before being allowed to fly a commercial airplane? Absolutely not. The whole thing is a horrible charade,” Bolick said.

Gordon notes the bar exam also lacks the ability to measure other important traits a good lawyer should have. The exam, for instance, does not test a person’s ability to be articulate, a trait essential to Lincoln’s success.

“The bar exam is largely an exam in ‘testing’ ability. It turns out there is a high correlation between how one does on the bar exam with how one does on the LSAT. But yet, again, nobody has ever tried to find out whether bar exam performance correlates with actual success in the legal profession. A lot of [what] lawyers do is talking to juries, schmoozing with politicians, and making deals. That’s the kind of ability that cannot be tested. A lot of people are kept out of the legal profession by these official requirements, and they might have done terrific jobs. But we’ll never know,” Gordon said.

How Britain Does It

The United Kingdom still has a lawyer credentialing system in place, much like America did during Lincoln’s time. Bolick notes that the English already have specialized bar exams. He thinks the concept should be adopted here.

“Currently, all legal training in America is intended to create general practice lawyers, when in fact most lawyers are specialists in one area or another,” Bolick explains. “So I would like to see the bar exam first broken up into specialized exams. The English already do this somewhat. So if you wanted to be a transactional lawyer, your bar exam would be quite different and you would be given your license to practice transactional matters only.”

Gordon still believes that the United States has an advantage over Britain in training lawyers, but he thinks England’s legal training system is not a bad one.

“In England, the time to become a lawyer is shorter and the expense is lower. It is a question of how best do you learn the specialized tools of the trade? The English have made a bet that they don’t care about university law degrees; you will learn the skills on the job. In both the solicitor and barrister professions, you have to get a job in a law firm; the interesting thing is you absolutely do not need a law degree. Also, there is something to be said for the English system: their one-year practical training course is a more flexible system,” Gordon said. “The English do not have the third year of law school like we do, too, which is a waste of time. If anything, we should replace that with practical courses like they give in England.”

Getting Less Expensive Lawyers

Gordon points out the nation could get a better legal system that’s more accessible if there were fewer requirements to become a lawyer.

“Legal services are too expensive for most people to afford. A lot of poor people have problems that lawyers won’t serve because it won’t generate a fee,” he said. “If the admissions criteria to be a lawyer in America were looser, would legal service be cheaper? Probably yes. Could you get a better profession — more accessible, cheaper legal services, and implied procedures — by making it easier to become a lawyer, particularly at the individual level, by loosening the admission criteria? You could.”

Jeffrey Ventrella, chief of the Office of Strategic Training at the Alliance Defense Fund in Phoenix, who has trained hundreds of law students across the world, agrees, noting such reforms would also lower legal costs. “If the credentialing procedure were looser, and there were more lawyers, prices would go down absolutely. Costs would be more reasonable, and it would take the profession in a different way,” he said.

Accreditation Monopoly: Restraint of Trade

Bolick thinks it is wrong that both public and private law schools are compelled to accept the ABA’s accreditation requirements, despite the ABA being a nongovernmental, private sector entity. Experts note if a law school goes against the ABA and the ABA revokes its accreditation, the school’s students will immediately become ineligible to take the bar exam. Bolick sees this as a major problem that effectively prevents many qualified people from entering the profession.

“I do not see why poor students, or those like Lincoln who are working or have families, cannot sit for the bar exam regardless of how they obtained their legal training in a ‘non-traditional’ sense. If the bar exam is the way the state wants to determine competency to practice the law, then I do not see why these students who did not go to an ABA school cannot sit for the exam,” Bolick said.

Gordon notes the ABA is successful only because state boards of bar examiners follow its law school accreditation requirements consistently. Were state legislatures to prohibit their boards from following the ABA’s requirements, the ABA would likely disappear as a legal force, and individual state legislatures would decide the accreditation requirements for their law schools. Gordon believes there needs to be alternative law school accrediting agencies.

“I would certainly be for doing away with the ABA’s role as the sole accreditor of law schools,” Gordon said. “Like any other professional cartel, the ABA really limits entry in many serious ways. The reason the ABA succeeds is that state bars adopt the ABA’s accreditation requirements.”

Curt Levey, executive director of the Committee for Justice, a legal lobbying group in Washington, DC, likes the idea of instituting alternative approaches of accrediting law schools too.
“I like the idea of there being alternative approaches to accrediting law schools because it will help break the ABA’s stranglehold. There is certainly no reason for the ABA’s monopoly here,” he said.

“The ABA system is a restraint of trade,” Ventrella said. “Our situation is so artificial in that regard. The ABA is even beginning to restrain the type of person able to enter the legal profession. Even if a student scored off the charts on their LSAT and was clearly competent, if that student went to a university whose curriculum utilized certain kinds of textbooks, the ABA in Texas is beginning to take the position that these citizens, while they are competent to practice the law, are not ‘the right kind of people we want practicing the law’. They are starting to institute requirements to prevent entry in that way, too.”

David Balto, a senior fellow at the George Soros-funded Center for American Progress and an antitrust attorney with over 20 years of experience, explains there is almost never a good reason for a monopoly – like the ABA’s.

“Monopolies just generally harm consumers, they typically lead to vastly higher prices and less service, history proves monopolies serve consumers poorly – we don’t have to look any farther than those government-sponsored monopolies in Communism to figure that out. Eliminating monopolies is very important,” Balto notes.

Changing a Defined Trend

Bolick believes Americans need to realize that the best way to improve their legal system and make it possible for more Lincolns to emerge is to support there being more, not less, lawyers in the country.

“Reforming our system is something that escapes the attention of the vast majority of Americans. Even when they encounter the consequences of the legal cartel—such as $500 an hour for a routine transaction—I do not think the typical American is necessarily able to identify the essence of the problem,” he said. “The other problem is that it is a bit counterintuitive to say it should be easier to be a lawyer in America. People think there are too many lawyers when, in fact, more lawyers obviously would mean prices would dramatically plummet and access to the legal system would dramatically increase.”

Experts say if the legal credentialing process is not reformed soon, not only will there not be another Lincoln, there will not be another Warren Burger, the Minnesota farmer who made it to the Supreme Court and later became Chief Justice. “Chief Justice Burger was a graduate of a night law school, but don’t expect too many more graduates of night schools to be on the Supreme Court. Virtually every recent appointment has been an elite appointment. That is where it is going,” Gordon said.