The Volokh Conspiracy

The number of prospective law students taking the LSAT has declined significantly in the past few years after peaking in 2009-10.  So what is the Law School Admission Council doing in response?  Increasing the test fees.  The fee increases include a substantial increase (in percentage terms) in the cost of sending LSAT scores to schools.  Yet if the LSAC is among those concerned about declining law school applications, making it more expensive to apply is hardly a sound way to respond.

UPDATE: Brian Tamanaha takes a closer look at the LSAC here.  As he notes, this is strange behavior for a non-profit organization that’s “sitting on nearly $200 million in assets” and is supposed to serve the nation’s law schools.

This Friday at 4 PM, I will be on a panel on reform of the licensing system for lawyers at the University of Washington School of Law, in Seattle. I will be joined by Paula Littlewood, Executive Director of the Washington State Bar Association, and University of Washington law professor Thomas Andrews. The panel is sponsored by the University of Washington Federalist Society and – I believe – the Washington State Bar Association.

I will argue, as I have previously at the VC, that the public interest would be best served by deregulating the licensing system, including abolition of the bar exam and elimination of the requirement that lawyers must attend three years of law school. At the very least, I will explain, we should allow people to enter the bar after “reading law” or apprenticing with a current practitioner, as was common in the 19th and early twentieth century (this is how Abraham Lincoln became a lawyer, among many others). Such reforms can drive down the cost of legal services for consumers and also make it possible for people to enter the legal profession without a vast expenditure of time and money. It will, of course, be important for consumers to have information available to them about the quality of legal practitioners. But that can be done in many different ways, without perpetuating today’s guild-like licensing system.

Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy.

Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)

At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.

UPDATE: I probably should add that I’m not at all sure the Court should have the level of legitimacy it currently has.  I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do.  But as a positive matter, I don’t see the ACA litigation as a threat to that legitimacy.

FURTHER UPDATE: Oh, and of course, why undermine the Court’s legitimacy when your side is one appointment away from taking it over?

This week the premier legal ethics blog, Legal Ethics Forum, is hosting a symposium on “Legal Education’s Response to the Economic Realities Facing the Profession.” In this symposium, “scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students.” They have what looks like a fantastic line-up (including my colleague Cassandra Burke Robertson), so this will be a must read for those interested in how legal education and the legal profession are responding to broader economic changes.

In a recent speech, Second Circuit Judge Jose Cabranes argued that law schools should get “back to basics” with more bread-and-butter courses and fewer “law and” courses, in addition to other changes:

To get back on track, law schools should shift their curricula back to core courses and away from the interdisciplinary classes that have grown in popularity, he said . . .

Cabranes lamented the move by law schools toward specialized, often interdisciplinary courses that can displace “black-letter” law courses — criminal and civil procedure, evidence and federal courts. He related a story about a friend’s child who enrolled in a law school clinic focusing on housing court — but who had never taken a property law course.

Core law courses should come before clinics and interdisciplinary work, even if the latter are more popular with students and faculty, he said.

I’d love to see an empirical study on how much, if at all, the differences in what courses students take impact their skill sets and influence careers as lawyers. These days, most courses after the first year are elective, and students can take a wide range of classes. Students can decide to take all basic doctrinal classes or all “law and” classes. They can take a lot of clinic credits (at most schools, at least) or none. Or they can take a mix of classes here and there, blending different kinds of classes. The diverse choices of different students would seem to allow examination of whether such choices make any difference — or at least if the students who opted for one set of courses ended up with different careers than ones who opted for a different set. I’d be very interested to know if there’s any difference; my first guess is that there is little or none.

Hat tip: Brian Leiter

In addition to the scores of specific words and phrases dissected in Lawtalk: The Unknown Stories Behind Familiar Legal Expressions, we also discuss more generally what may be the most ridiculed characteristic of legal language — its predilection for redundancy: “aid and abet,” “over and above,” “goods and chattels,” “ordered, adjudged, and decreed,” and so on and so forth. In law school it was explained to me that this was the result of combining words from Old English (like goods) with substantially synonymous words of French origin (like chattels) to assure comprehension in an age in which both languages were used in England, particularly in legal contexts.

But this common explanation doesn’t hold water. Aid and abet, for example, are both from French; over and above are both native English. In Lawtalk we point out a number of considerations that fostered — and in many cases still foster — the use of such phrases, such as the fear that omitting some customary word would open the door to an argument that some shade of meaning is not covered. A factor now mostly forgotten is that for centuries court clerks, and even some lawyers, were paid by the page — an approach unaccountably neglected in the search for alternatives to billing by the hour, about which Beth Thornburg wrote in this space two days ago. And we emphasize an even more overlooked factor: that the use of redundant expressions is not specifically a lawyerly habit, but a common stylistic feature of general English, sometimes adding gravity (e.g. wrack and ruin) and sometimes whimsy (jot and tittle).

An e-mail the other day from Eugene Volokh, however, raises the interesting question of how redundant such phrases really are. He noted that abet historically referred to verbal encouragement rather than physical assistance, so that aiding and abetting actually covered two different types of participation in a crime.

The point is a good one. It is undoubtedly the case with any number of fixed phrases of this sort that the words have, or originally had, different meanings or different nuances, but the distinction blurs to the point of nonexistence when they are used together. For example, at least originally, a nook was an interior corner, and a cranny was a small hole or fissure in a wall. Possibly in some early uses the phrase nooks and crannies was a deliberate conjunction of two distinctly different types of small partially enclosed space, but it is doubtful that many people today are conscious of the distinction.

So it is with aid and abet. It is quite true that the original meaning of abet was to “urge on, incite.” The word is actually distantly related to bait as in bear-baiting, in which dogs were incited to attack a chained bear. It thus was distinguishable from aid in the narrow sense of providing concrete assistance. So it is no doubt true that the phrase aid and abet in the common law was chosen to cover the gamut of participatory conduct by a secondary actor in a crime.

But the concepts could never be entirely distinguished. Physical assistance encourages one to proceed with a task, and verbal encouragement helps one to accomplish it. That’s why football teams have cheerleaders.

Moreover, in law it seldom matters anyway whether one directly aids or only solicits or encourages the commission of a crime. Blackstone’s definition of “principal in the second degree” in 1769 (Commentaries, vol. 4, p. 34) was “he who is present, aiding, and abetting the fact to be done.” (Blackstone then immediately explained that “presence” may be constructive rather than actual.) And modern law likewise lumps the two together: the American Law Institute’s Model Penal Code, § 2.06, defines an “accomplice” as including anyone who “(i) solicits . . . or (ii) aids or agrees or attempts to aid” the commission of the crime. The confederate of a second-story man would get nowhere by arguing that she merely requested the thief to steal certain jewelry but did not help him, or merely held the ladder but did not encourage him. The law doesn’t care. (On personification of “the law,” see our entry on “the law is a ass.”)

The impossibility and pointlessness of distinguishing “assistance” from “encouragement” led to a loss of the distinction, so that now the Oxford English Dictionary defines abet as “To encourage or assist (a person) to do something,” and gives examples as early as 1840 of aid and abet — and 1883 of abet alone — used in everyday nonlegal contexts in which only physical assistance is referred to.

Why, then, do we continue to use both words when just “abet” would do? The answer is that such redundancies — and we cite lots of examples in the book — are characteristic not just of legal writing but of English generally. Why else would Abraham Lincoln, in a public address celebrated as a model of concision, say that it was not just fitting but “altogether fitting and proper” to dedicate a portion of the Gettysburg battlefield as a cemetery for the fallen soldiers — and then go right on to use three virtually synonymous words to say that “in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground”?

And why the particular words “aid and abet,” and not, say, “help and encourage” or “assist and exhort”? Because if there’s one thing English likes even better than redundancy, it’s alliterative redundancy, like hale and hearty, safe and sound, and even, as in my opening sentence above, so on and so forth.

To borrow a legal expression: for the rest, residue, and remainder of what we have to say on this subject, see the book!

David Segal’s recent New York Times article on ABA accreditation of law schools makes the important point that the ABA uses the accreditation process to reduce competition for its members by artificially reducing the number of law schools, and thereby eliminating potential competitors for its members. This interacts with laws that require consumers to rely on lawyers even for relatively simple tasks that in many other countries are performed by paralegals and the like. The end result makes even basic legal services extremely expensive, especially for the poor and the lower middle class:

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors....

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities.....

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law....”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers....

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

Thanks so much to Eugene Volokh for the invitation to guest blog about Lawtalk:  Unknown Stories Behind Familiar Legal Expressions this week.  Working on the book was tons of fun (and a dramatic lesson in the amount of historical material now available online), and my co-authors and I are enjoying the opportunity to share what we’ve learned with those who are interested.  Today’s topic is time, both in the sense of the provenance of legal expressions and as a measuring stick for legal fees.

In many cases, we discovered that law-related expressions are much older than people generally believe, and older than the earliest cites in the Oxford English Dictionary.  For example, I initially bought into the myth that Los Angeles police chief William H. Parker coined the phrase thin blue line in the 1950s (thanks, Wikipedia).  Not true:  in its laudatory metaphorical form (referring to the police as a line protecting the citizenry from crime), we traced this play on “thin red line” (referring to red-coated British soldiers in the Crimean War) back to a speech given by the Bishop of Coventry to the annual meeting of supporters of the Birmingham Police Institute in 1900–and as a literal reference to lines of policemen, all the way back to 1855.

A different kind of surprise, though, was how comparatively new the expression billable hour is.  In fact, billable in this sense is even now absent from the OED; it has the word only as a legal term meaning “liable to be served with a bill; indictable,” and its only cite is from 1579. Billable as an accounting term meaning ‘something one can bill for’ seems well established by the turn of the twentieth century, although LexisNexis shows the earliest case law use of this version of billable in a 1929 case, and the earliest billable hour (actually “non-billable hours”) in 1947 – and neither instance is about lawyers.

Lawyers didn’t always bill by the hour (and some still do not). Early twentieth century lawyers used various methods for billing clients. Some matters were billed at a flat rate, some on a percentage basis, and many used a method called value billing. Bills were sent only sporadically and were not itemized, noting only “for services rendered.”

By the 1920s, state and local bar associations began to publish minimum fee schedules, listing the appropriate charge for various kinds of legal matters.   For example, the schedule would “suggest” one fee for handling a real estate closing, another for drafting a will, and yet another for a contested divorce.  Lawyers ignored these schedules at their peril, as habitual under-charging could be treated as professional misconduct.

A mid-century movement toward “legal economics” marked a shift to charging for time rather than tasks.  In 1940, Reginald Heber Smith wrote four articles for the American Bar Association Journal advocating a more organized approach to law firm management. Among other things, he recommended monitoring and documenting lawyer productivity through “Daily Time Sheet” forms.

Then in 1957 the ABA created the Committee on Economics of Law Practice, and in 1958 went on a crusade to promote hourly billing with its pamphlet, The 1958 Lawyer and His 1938 Dollar.  This tract pointed out that lawyers who kept track of their time and billed clients accordingly made more money than those who did not. (It also noted that lawyers’ earnings had failed to keep up with those of doctors and dentists). The problem, said the ABA, was that by concentrating on “devotion to public interest,” lawyers were failing as businessmen, and that they should start recording and charging for their time, their “sole expendable asset.”  State bar associations responded, as when a committee of the Wisconsin State Bar calculated in 1959 that an average billing rate of $18 per hour was necessary to sustain a net return of $14,500 per year.

The ABA’s efforts continued into the 1960s.  The Committee published a series of pamphlets covering many phases of law practice management, culminating in the 1962 Lawyer’s Handbook.  In 1966 the President of the ABA noted that 35,000 lawyers had copies of the handbook, but he still worried that too many lawyers failed to use efficient practice methods to assure an “adequate economic return.”  It was during this period that billing by the hour gradually caught on, spreading from large firms to small ones, and by the late 1970s hourly billing became the norm.

The term billable hour seems to have crept into legal vocabulary only as its adoption as a billing method became established. A 1968 case is the first to use “billable hour” with respect to lawyers, and it uses quotation marks and defines the term. It seems likely, though, that bar association meetings and publications were the earliest adopters of this lingo, and those sources (including a law student letter to the editor) routinely used billable hour without explanation by the early 1970s.  As late as 1975, however, the author of an article in the journal Legal Economics still felt the need to explain “the ‘billable hour’ concept.”

Today the billable hour is very much in the news.  Just last week the online ABA Journal reported that a law firm associate claimed he was fired for refusing to fraudulently bill 3,000 hours a year, and its weekly survey question asked “How many hours will you bill in 2011?”

But has there really been much change?  A 2007 survey showed a slight increase in alternative billing methods, and the protracted economic recession that began in December of that year encouraged further rethinking of billing practices, with the result that some large law firms report using flat rate billing or other methods more often nowadays.  But the billable hour remained firmly entrenched. As one industry observer was quoted as saying in 2007, “alternative fees are like teenage sex. There are more people talking about it than doing it, and those that are doing it don’t know what they’re doing.”

Stephen Glass, the disgraced writer for The New Republic who penned stories that were too good to be true (and whose exploits inspired the movie “Shattered Glass”) wants to be a lawyer.  But is a journalist exposed as a serial fabricator fit to practice law?  The New York Bar said no.  Now, The Recorder reports, Glass is trying California, and his case is going to the state supreme court.

Glass moved to California and passed the bar exam here. But in 2009 the Committee of Bar Examiners declined to certify his moral fitness, noting, like New York, his history of lies. Glass then petitioned the State Bar Court’s hearing department, which disagreed with the committee and found the would-be lawyer had the necessary “good moral character.” The hearing officer declared Glass’ 22 supporting witnesses to be “outstanding” and credible.

The committee took the case to the three-judge review department, which in July, on a 2-1 vote, found that Glass had indeed rehabilitated his moral shortcomings and should be certified for admission to the Bar. Now the Committee of Bar Examiners has successfully asked the state Supreme Court to step in.

“In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission’s eyes significant rehabilitation,” Grunberg said. “He just hasn’t shown that he holds those values that we hold dear.”

The question is likely to be decided in early 2012.

While there’s a lot worth criticizing in David Segal’s NYT article about law professors and law schools — Matt Bodie covers a lot of good ground in this post at Prawfs — there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

Richard Posner made this point nicely in his 2007 essay celebrating the life of his late colleague Bernard Meltzer. Posner begins by describing the professional identities of law professors before the 1960s:

Law professors used to identify primarily with the legal profession and secondarily with the university. . . . Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer.

That all changes starting in the 1960s, Posner argues: Now law professors identify academics first, and with the legal profession second or not at all. Posner argues that this switch has real costs to students, as law professors who identified with the legal profession served as role models for students who were trying to master the craft of lawyering:

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed.

Posner then argues that while you wouldn’t want every law professor to be completely oriented to the profession, law schools should strive for balance between the profession-oriented legal academics and the university-oriented legal academics.

[The practical lawyer's sense] cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

Co-blogger Orin Kerr links to Richard Fallon’s interesting article on the ethics of law professor amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? I am not sure that either of us has hit upon exactly the right approach. But I do think that we should apply tighter standards to our participation in these kinds of briefs than seems to be the norm today. Otherwise, as Fallon suggests, we end up using the intellectual authority we have based on scholarship within our fields of expertise to influence courts on issues about which we actually know very little.

An alternative norm is that a law professor might sign an amicus brief on an issue outside his expertise in such a way as to indicate that he’s doing so in his capacity as an ordinary citizen rather than as an academic expert. This approach is, I think, entirely ethical. Experts are not the only ones entitled to express opinions on legal issues, including in amicus briefs. But it does, of course, tend to defeat the main reason why people solicit law professors’ signatures on amicus briefs in the first place. A brief joined by “Professor Joe Blow, constitutional law scholar,” looks a lot more impressive than one signed by “Joe Blow, acting in his capacity as an ordinary citizen.”

Brookings Institution scholar Clifford Winston recently published a good column advocating the abolition of legal requirements mandating that all lawyers must graduate from law schools and pass bar exams:

For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. 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.

Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance....

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.

See also his recent coauthored book on this subject.

I have made similar arguments in previous posts, here, here, here, and here. In this post, I explained why it’s better to eliminate the bar exam requirement than try to reform it.

To be clear, neither Winston nor I are suggesting that either law schools or bar exams should made illegal. We merely advocate eliminating the laws forbidding people to practice law without having these two credentials. Consumers, however, might still prefer lawyers who have gone to law school and/or passed a bar exam to those who have not. Moreover, with their legal monopoly gone, law schools will have incentives to provide better legal education and bar associations will have stronger incentives to design tests that really do correlate well with future performance as a lawyer. Voluntary certification has many advantages over the present bar exam system, some of which I covered here:

Voluntary certification is another useful tool for consumers. If state-mandated bar exams were abolished, both bar associations and other private groups would still be free to certify lawyers using either tests or other standards they deem appropriate. If lawyers certified by the bar association are generally more competent than others, sophisticated clients will soon realize that, and the knowledge will quickly trickle down to less sophisticated ones. Over time, lawyers certified by the bar association will command higher salaries and enjoy more prestige than those who are not.

Superficially, voluntary certification seems little different from the old bar exam system. After all, lawyers would still have incentives to meet standards established by some professional organization. However, there are three big differences. First, abolishing state-mandated exams allows different certification systems to compete against each other. This stimulates improvement in standards over time and also increases consumer choice. Second, since no certifying body will have a monopoly, these groups will have strong incentives to improve the quality of their certification systems. If the bar association’s certification system turn out to be inferior to that of the Better Business Bureau, for example, fewer consumers will pay attention to it, and fewer lawyers will pay to take the bar association’s test. For this reason, a bar association that didn’t have a legal monopoly on certification is likely to produce a better test than one that does.

Finally, with multiple certification systems, we would no longer have to have a “one size fits all” system that sets standards for all lawyers and all clients. It could well be that Certification A better meets the needs of some clients, while others have reason to prefer B, and still others need no certification system at all.

Market competition and voluntary certification might not be able to eliminate all need for regulation of lawyer quality. For example, there is the issue of what to do in situations where clients have no real choice, as in the case of court-appointed lawyers for indigent criminal defendants. However, it does obviate the need for crude licensing regimes such as the bar exam that completely block access to the profession to anyone who doesn’t pass.

St. Louis University law professor Aaron Taylor recently published a good column challenging the conventional wisdom that holds that the job market for lawyers is rapidly collapsing:

It’s open season on legal education — falling applications, lawsuits by former students and dooms day warnings about the legal job market. The rampant bad publicity has taken on a sensational flair. Popular blogs and even established news forums are peppered with anecdotes about law school graduates drowning in debt with no good options for the future.

But as is often the case with anecdotes, these compelling tales of woe represent exceptions...

Lawyers have not been immune to the effects of the recent recession. However, they have fared much better than most workers. According to U.S. Department of Labor data, the unemployment rate for lawyers was 1.5 percent in 2010 — more than six times lower than the overall rate of 9.6 percent. Since 2009, while the overall unemployment rate has remained above 9 percent, the rate for lawyers has exceeded 2 percent only once. It is true that unemployment among lawyers has increased significantly over the last few years (it was barely 1 percent in 2007), but the increase pales when compared to other occupations.

Salary data show that the vast majority of lawyers earn relatively high salaries. According to the U.S. Census Bureau, lawyers boast the fourth highest median salary behind medical doctors, dentists and CEOs (some of whom have law degrees). While the majority of occupations have median salaries between $20,000 and $49,999, the median for lawyers in 2010 was almost $113,000. Again, this was the median — the actual midpoint — which means the majority of lawyers made six-figures.

Predictably, starting salaries for new lawyers tend to fall below the median for the profession as a whole, but they still tend to be relatively high. According to NALP, the class of 2010 had a median starting salary of $63,000, a respectable living for a new entrant into any profession. On the downside, the 2010 median was $9,000 lower than the year before. But declining wages have buffeted the entire economy. Fortunately, as the economy sputters back to life, salaries are unlikely to continue falling at the same rate — if at all.

Note that most of the data Taylor relies on comes from the Labor Department and the Census Bureau rather than NALP, which has been criticized for relying on overly optimistic data provided by law schools.

I advanced similar challenges to the conventional wisdom on the legal job market here and here. In this post, I noted that the long-term prospects for the legal profession are likely to be good, because the demand for lawyers is largely driven by the amount and complexity of laws – and that complexity is rapidly increasing.

Some will probably accuse me of wanting to make law seem more attractive than it is because I am a law professor. I preemptively addressed that charge here:

I’m sure someone will argue that I’m just saying this because, as a law professor, it’s in my interest for people to believe that going to law school is a good deal. Maybe so. But note that I advocate several reforms that are definitely not in the interest of law professors, such as allowing people to join the profession through apprenticeships, eliminating the legal requirement of spending 3 years in law school, and so on. More broadly, I favor greatly reducing scope and complexity of American law, which cuts against the longterm interests of both lawyers and law professors.

I have also long argued that too many choose law school as a sort of default option without giving sufficient thought to the question of whether they’re really likely to be happy as lawyers or entering one of the other professions for which a J.D. is valuable. Law is a lucrative profession and likely to remain so. But many lawyers work long hours at tasks that a lot of people would find boring and repetitive.

I’m far from happy about the continued financial health of the legal profession. Much of it stems from the growth of government and the increasing complexity of our legal system, both trends that I oppose. I also oppose the bar exam, ABA accreditation of law schools, and other government policies that artificially inflate lawyers’ salaries by protecting them from competition. These types of policies make it very hard for the poor and lower-middle class to afford basic legal services, which I think is a problem far more worthy of concern than the supposed financial woes of lawyers.

If the long-run demand for legal services really did decline drastically, I would see it as a positive sign. But that’s not what seems to be happening right now. Like most other professions, lawyers have suffered during the current recession, and entry-level job prospects have worsened. But, as Taylor explains, these economy-wide trends are actually much less severe among lawyers than in most other fields.

UPDATE: Some commenters and others claim that the Labor Department data on lawyer pay and unemployment rates are invalid because they don’t take account of people who have left the legal profession entirely. I responded to similar claims here:

[I]t seems unlikely that there is large Marxian “reserve army” of unemployed lawyers [or JDs who would like to return to the legal profession] out there. If there were, one would expect lawyer salaries to drop substantially as competition from the unemployed drives down the pay of those who have jobs, especially at the lower ends of the distribution (e.g. — the 10th and 25th percentiles noted in the post [both of which are relatively high figures]). Yet the Labor Department data shows lawyer salaries holding fairly steady. For example, today’s [2010] 10th percentile salary of $55,000 per year is actually slightly higher than the prerecession 2007 figure. That would be highly improbable if there were large-scale unemployment among lawyers [or if there was a large number of JDs outside the legal profession, but willing to reenter it].

In addition, it seems highly unlikely that nearly all JDs who can’t find jobs as lawyers, but want them leave the profession almost immediately, thereby keeping the unemployment figure at the low measured rate of 2%. One would expect them to hang around somewhat longer than that. The bottom line is that, although the official 2% figure may not be fully accurate, it is still likely that unemployment for lawyers is far lower than in the economy as a whole.

In today’s WSJ, Clifford Winston and Robert Crandall of the Brookings Institution argue that now is the time for the legal profession to deregulate.

The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.

Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.

The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.

They are also co-authors of a new book, First Thing We Do, Let’s Deregulate All the Lawyers.

Are Winston and Crandall right? Although it may be against my own economic interests to say so, I am inclined to think they are. For more on this subject, check out Truth on the Market’s forthcoming online symposium on whether to deregulate the legal profession. In addition to Crandall, confirmed participants include Bill Henderson, Bruce Kobayashi, George Leef, Jon Macey, and Richard Painter, with more to come. It should be good.