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Addled "Diversity" Logic:

Courtesy of John Rosenberg, here's an article praising the ABA's new "diversity" standard on the theory that it will require California law schools to create more African American attorneys. Putting aside the issue of Proposition 209, to the extent that as a result of the new standards California law schools bend their admissions standards in some legal or illegal way to admit more African American matriculants, it's not clear that this will have much of an effect on the number of African American lawyers, or that it would worth the cost if it did. According to the very same article, only 33% of first-time African American bar exam takers in California passed, compared to 69% of whites. Some implications that seems rather obvious to me: (1) California (and the ABA) can most easily increase the number of African American attorneys by either (a) making the bar exam easier; (b) abolishing it altogether; or (c) finding some way to increase the passage rate for African Americans; and (2) Given that 2/3 of African American bar exam takers are already failing the bar exam on their first try (and that does not account for students who failed out of law school and never took the bar), and that many of those who fail the first time will never pass, where is the logic in encouraging law schools to admit even more African American students, unless there is some evidence that these students will be stronger than recent crops of students?

I'd be very happy to see the mandatory bar exam replaced with a voluntary exam (or many voluntary exams, let the free market rule--see posts by Ted Frank and Larry Ribstein for similar thoughts). Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education. Either one of these solutions would likely increase the number of minority attorneys in the U.S. far more than ABA racial prefernce requirements for existing law schools, and with far less costs in terms or ruining the lives of students who attend law school but are never able to pass the bar. Unsurpringly, however, the ABA prefers the cosmetic solution that preserves its power and keeps the current barriers to entry in place, even at the price of urging illegal actions on the law schools.

UPDATE: And here's an unintentionally ironic comment from John Sebert, consultant to the ABA, last seen shilling for the ABA's new "diversity" racial preference requirements, defending the use of LSATs in admissions in today's Chronicle of Higher Education (temp link): "It's sort of a consumer-protection issue," he said on Monday. "We want to be sure that law schools aren't admitting a substantial number of students who are unlikely to be successful in their program or in their attempts to pass the bar." So why is it okay for law schools to admit African American students with scores that guarantee that many of them "are unlikely to be successful in their program or in their attempts to pass the bar"? Remember, 42% of African American students who start law school either fail out or never pass the bar. The "failure" statistic is much lower for the better law schools, which means, logically, that it's significantly worse than 42% at some lower-ranked law schools. And, moreover, law schools can generally predict based on incoming LSATs scores which students are likely to have trouble passing the bar. Isn't there a consumer protection issue in admitting, without warning, students who you know based on prior statistics (and law schools do know!) have less, and perhaps much less, than a 50% chance of becoming lawyers? And if so, why does the ABA not only encourage, but demand this (and more of it, under the new standard)? Hat tip: Rosenberg.

Starboard Attitude (mail):
Whoa. My head's spinning right now.

Are you really suggesting free market sources alone could ensure a competent bar?
2.22.2006 8:34pm
Eh Nonymous (mail) (www):
I think all this blawgospheric criticism is so off base... I support ABBA's effort to diversify beyond its all-Swedish, all-couple format. I mean yes, they do have gender balance, but what about national origin/ race/ color/ creed/ hairstyle diversity?
2.22.2006 8:43pm
Steve:
California is an atypical state because of the huge number of unaccredited law schools. The graduates of these schools likely make up a large portion of the bar exam statistics.
2.22.2006 9:13pm
Frank Drackmann (mail):
G. Gordon Liddy is a huge ABBA fan.
2.22.2006 9:18pm
Adam J. Morris (mail):
California is an atypical state because of the huge number of unaccredited law schools. The graduates of these schools likely make up a large portion of the bar exam statistics.


You could look at Texas as a point of comparison...9 law schools, without the problem of unaccredited schools skewing the datea...

Here's a link of the analysis of 2004 bar results in Texas, by gender and race...

http://www.ble.state.tx.us/one/analysis_0704tbe.htm#q2

First time test-takers passage rates, by race:

White -- 85%
Asian -- 80%
Hispanic -- 69%
Black -- 53%

As the authors of the study point out:

"We found that on the average, the applicants in different racial/ethnic groups performed as well on the bar exam as would be expected on the basis of their law school admission credentials and law school grades."

http://www.ble.state.tx.us/one/analysis_0704tbe.htm#q3
2.22.2006 9:23pm
logicnazi (mail) (www):
I'm open to the idea of affirmitive action, though I would of course be disadvantaged by it, *if* I was convinced that it did good. However, I just don't understand the dogmatic insistance on the pro-affirmitive action side that it *obviously* is good and the tendency to view any investigation into the overall effects of affirmitive action as some kind of biased attempt to keep minorities down.

Having said this just the fact that minorities have a lower passing percentage on the bar exam hardly proves that an affirmitive action policy wouldn't create more minority lawyers. So long as their passing rate isn't 0 increasing the number of minority law students, all other things being equal, should increase the percent who pass the bar (even if the new minority students are at the very bottom end of the current spectrum). However, the key phrase here is 'all other things being equal'. Diversity programs are going to tend to push minorities up from less rigorous schools into more rigorous schools and while this might at first seem a positive thing having attended some very tough schools (not law schools) I can tell you that at top ranked schools there are always people who could have made it at a slightly worse school failing out because they aren't exception enough to make it at a great school (and they feel dumb because they aren't as good as their classmates).

More troubling is the broader effect on society that giving less proficent minorities a boost will have. The ultimate aim of any affirmitive action program should be to end racism. However, humans are amazingly good at unconciously recognizing trends (experiments with decks of cards show people unconciously understand trends far before it rises to conciouss awareness). If we put people in an enviornment where a random black attorney is going to be less proficent than a random white attorney (because more black attorneys got their on affirmitive action) there is the real danger we will accentuate this sort of unconcious bias effect.

Ultimately I don't know whether it is good or bad overall but so long as we don't have compelling evidence that it is beneficial it seems like a bad idea to risk a backlash and spend money on a project which might hurt rather than help minorities.

However, I have to disagree wholeheartedly on the idea of letting the free market handle law degrees. Not only does this create a problem because consumers aren't going to be knowledgeable about the relative value of different degrees/exams it would play havoc with public defenders. Already indigent suspects are at a disadvantage by having underpaid and often (with valiant exceptions) inexperienced/underperforming lawyers. If we had a free market in bar exams what would prevent the state from hiring public defenders who had passed the $5 dollar internet law degree test. On the other hand if the state is legally required to meet a certain minimum standard that isn't significantly worse than the current bar exam won't that just become a defacto legal bar exam?
2.22.2006 9:51pm
Cornellian (mail):
For those who think it's a good idea to do away with the bar exam and let anyone hold himself out to the public as a lawyer, would you favor a similar free market approach for the medical profession? Do you think lay people understand the law any better than they understand medicine?
2.22.2006 10:04pm
DavidBernstein (mail):
Cornellian: Yes, I would say the same for doctors. Indeed, we sort of have this already. Some doctors are M.D.s, some are D.O.s. I never go to a specialist unless he has passed his boards and is board-certified, but there is no such legal requirement for specialists. And people can go to chiroprachtors, nurse practitioners, optometrists, physical therapists, and other health practioners who don't have a medical degree. The first result of getting the AMA out of medical licensing would be to get rid of the ridiculous unnecessary, costly, and time-consuming pre-med requirements, and make the M.D. somewhere between a four and six year undergrad degree, as in other countries not "blessed" withthe AMA.
2.22.2006 10:09pm
anonymous coward:
"On the other hand if the state is legally required to meet a certain minimum standard that isn't significantly worse than the current bar exam won't that just become a defacto legal bar exam?"

Well, I think the idea is that those minimum standards would be very different from the idiot bar exam.

Maybe if there was no law school/bar exam requirement to be a lawyer we'd have megafirms for everyday legal work--a bit like H&R Block--that could market themselves as trustworthy. That might be a good thing on balance. Of course, it's hard for a layperson to evaluate the quality of an attorney--especially for the less-educated who won't have the knowledge to understand the import of different (privately granted) credentials.
2.22.2006 10:15pm
Anthony (mail) (www):

For those who think it's a good idea to do away with the bar exam and let anyone hold himself out to the public as a lawyer, would you favor a similar free market approach for the medical profession? Do you think lay people understand the law any better than they understand medicine?


Though I agree with Prof. Bernstein's position on this issue, one can justify requiring doctor licensing while not requiring lawyer licensing on the grounds that there are situations where patients simply have no choice or say in who performs medical procedures on them (emergency situations where the patient is incapacitied, and so on). That's not the case with legal services.
2.22.2006 10:52pm
scouser (mail):
Anon - re H&R Block: there's already a thriving market in providing basic legal services that can be handled primarily through forms (simple divorces, wills, incorporations, etc.) Providers have to skirt the unauthorized practice laws by denying they are engaged in legal advice but all involved know differently and occasionally a state bar will make a run at them. Without the bar exam this type of service would undoubtedly expand and that's just what concerns the state bars.

As for the free market, most people don't realize that this approach does exist in certain practice areas. Most prevalent example is labor law where one need not be a licensed attorney to represent a party before the National Labor Relations Board, the federal agency conducting quasi-judicial hearings and whose rulings have the force of law. Unions very often choose to be represented by non-attorney staff some of whom are very good, others not, just like admitted lawyers.
Similarly, patent law has a restricted license, eligibility for which is based on receiving a hard science undergrad degree.
2.22.2006 10:54pm
Fishbane (mail):
So long as their passing rate isn't 0 increasing the number of minority law students, all other things being equal, should increase the percent who pass the bar [...]

I might suggest more math and statistics lessons for those seeking a J.D., actually.
2.22.2006 10:57pm
Jay (mail):
"or that it would worth the cost if it did."

What cost?
2.22.2006 11:11pm
PaulV (mail):
If the average drop out/failure to pass bar rate is 42% the maginal rate should be significantly higher. Yes a few more minority lawyer may pass bar, but there will be many more angry, bitter and disillusioned non lawyers. A high price to make those with good intentions pave the road to hell.
2.22.2006 11:20pm
BU2L (mail):
Fishbane, you couldn't be more right, except that the problem you point out - like the problems that create the "need" for affirmative action - is best addressed at the elementary school level.
2.22.2006 11:21pm
Wintermute (www):
The ABA may get Alito-slapped on this business.
2.22.2006 11:48pm
Lev:
Good paralegals plus a bar review course plus on the job training afterwards can yield some fine lawyers, lawyers better in fact than law school plus a bar review course plus the same on the job training.

"The bar exam is the last hurdle an old and corrupt profession has placed between you and a license to steal."
2.23.2006 12:31am
BU2L (mail):
Lev,

once I pass the bar - and God, willing I will - I expect from you a license to steal. By "stealing," I mean that I don't want any of this 90 hours/week BS of going through 11 year old emails between two a$#holes. I would like to be able to more or less sit on my behind and have the money pour in. The last thing I want to do is actually represent someone's legally protected interests at a rate agreed upon at arm's length.

So yeah - hook me up. And if you don't mind, could you share the basis, if any, for your conclusion that paralegals will make "lawyers better in fact," then folks who just went to law school? Don't get me wrong, I met some very smart paralegals - and I only worked in law for 10 weeks last summer - but still, where do you get your conclusion?
2.23.2006 12:40am
Lev:
BU2L

The quote is from the first session of a bar review course by the proprietor.


And if you don't mind, could you share the basis, if any, for your conclusion that paralegals will make "lawyers better in fact," then folks who just went to law school?


I don't mind. I have worked with paralegals, lawyers, and others. I didn't say all paralegals would end up being better lawyers than all law school graduates. But not all law schools are great, and not all law school graduates are great, and not all paralegals are lower levels of life when compared to law school graduates.

Remember, to become admitted to a bar, one need only accomplish a very few things.

* get admitted to a law school

* graduate from a law school

* pass a bar exam

* pass a multiple choice ethics test

* pass a state bar's screening process

* take an oath

Brilliance, competence, are not required.
2.23.2006 12:56am
Marcus1 (mail) (www):
Well, I actually agree with much of your assesment. But, of course, the only question isn't how many pass the bar. As we all know, going to a top law school gives someone a lot more opportunities than going to one of lesser acclaim.

There's an interest, not just in having more minority lawyers, but also having more minority lawyers at the top of the profession. Affirmative action in law schools helps accomplish that, no question.

I probably still oppose it, though, for a whole lot of reasons, one of them that essentially everybody is largely underrepresented at the top of the legal profession, and that quota-type affirmative action covers up bigger problems while providing only an extremely abstract benefit, IMO.
2.23.2006 12:57am
Steve:
It makes sense for law to be a regulated profession, notwithstanding the folks who think the free market is always the best answer. That doesn't mean the present barriers to entry are ideal, of course.

Sophisticated commercial actors may be in a good position to shop around for legal services and assess the skill of various attorneys, but the same can't be said for most laymen. Many people may have only one or two encounters of significance with lawyers in their lives, and they can't simply go to someone else the next time if they get bad service, the way you might buy your groceries at a different store. And because taxpayers finance the courts, they have a vested interest in ensuring that the courts' time is not wasted by unqualified users.

Of course there are bad lawyers in the present system, but it hardly makes the whole thing a protectionist scam. Indeed, if the bar associations are trying to artificially keep the number of lawyers low, they're doing a pretty lousy job.
2.23.2006 1:27am
Bruce Hayden (mail) (www):
Minor point about patent attorneys and agents. The liscensing with the USPTO requires a one day bar exam that has a much lower pass rate than most state bars do - when I took it about 1/3 passed. It is, by necessity, more focused, partly on patent law and prcedures, and partly on pragmatics - though the later seems to be less now than when I took it. And, yes, it requires a scientific or engineering background, with about 1/2 the college credits (about 40 semester hours of science and engineering for the USPTO bar) required of the JD (presumably somewhere around 90 semester hours) for most state bars. If and when you pass, you become a patent agent, unless and until you are admitted to a state bar as an attorney (there is even a form for upgrading to patent attorney, but no mechanism that I know of for downgrading).

There is, of course, a running war between patent attorneys and patent agents about what the later are allowed to do. There was a Supreme Court opinion that preempted state regulation of patent practice by state bars on Supremecy grounds. But there hasn't been much to define exactly what is meant by practice before the USPTO. Thus, for example, patent attorneys typically believe that patent agents can give patentability opinions, but not infringement opinions. Many patent agents though do give infringement opinions. Drafting patent licenses is another point of contention.
2.23.2006 2:26am
Cornellian (mail):
I seem to recall that California has extremely liberal rules for who can take its bar exam, far less restrictive than most other states. That probably explains a significant chunk of the high failure rate for its bar exam, but it also leaves me inclined to wonder about the California legal services market. Are the more lawyers per capita (probably). Is the quality of legal services any higher? (doubtful). Are the prices for legal services any better? (again, doubtful, but who really knows). Perhaps it's an interesting test case for those who are empirically inclined. I personally don't think the bar exam (even the California one) is the huge barrier that some people think it is. Anyone smart enough to get into any half decent law school who is willing to take the Bar/Bri prep course (and take it seriously) can pass the California bar exam. Therefore, very liberal rules about who can take the exam out to lead to a large influx of lawyers, relative to other states.

I should also mention that in Canada, a law degree is effectively a graduate degree, despite being called an LL.B. You need either a full B.A. or at least two years of undergrad to get admitted, and virtually no one is going to spend two years in undergrad, then skip the third and never get a B.A. In other words, you'd have an extremely hard time finding any Canadian law students who didn't have prior degrees.
2.23.2006 4:15am
tioedong (mail) (www):
I personally dislike such "affirmative action" programs, because they discriminate against others.
I lost my scholarship money, halfway thru medical school because my school felt that giving scholarships to African Americans was a priority.
However, as a poor ethnic white female, no one seemd to notice that although my class only had one percent African Americans, it also had only six percent women...Luckily, a loan got me through...
And ethnics whites are not the only ones who remember such double discrimination...Asian Americans are the ones most affected by these rules...since I am married to an Asian, that means my neices and nephews will also have to face discrimination in the name of....diversity...
2.23.2006 4:33am
The Drill SGT (mail):
Somewhere earlier last year there was a posting about CA bar passage rates. The discussion came around to affirmative action and an interesting article by I think UCLA Poly Sci or Econ Profs about the impact of AA on production of black lawyers. Recalling and perhaps butchering the premise, I think it went:

1. Increasing affirmative action goals/quotas (whatever) across the board at law schools of various qualities/difficulties causes:
2. First Tier schools, searching for what to them are additional minority applicants, lower their standards. The applicants thus admitted have a harder time in course work and have a lower pass rate on the bar than the rest of the students.
3. Those AA students thus added to the first Tier (e.g. Harvard or Yale) would have, if not for AA attended second tier schools (e.g. a State School) , and in that peer group, would have done better in course work, developed more confidence and not dropped out or failed the bar. However, since the first set of students moved up to first tier schools, the second tier school must now not only replace those students, but also go after its own quota of new minority applicants by stealing them from a third tier school or by enrolling folk that shouldn't be in law school to start with. etc, etc

4. The ultimate result is that more minority students attend school, and the pass rate and education of all of them may be lower WITH affirmative action than without it. It was unclear to them that the policy was either good for the students or society.
2.23.2006 8:00am
Tom Trigger (mail) (www):
The solution is so simple I can't believe no one's proposed it yet. We simply need to have TWO kinds of lawyers. We can have regular lawyers that go to law schools and pass bar exams, and then we can have DIVERSITY lawyers who maybe don't have to get graded in school, and can maybe kind of slide on the bar exam. Instead they can write an essay about white privilege or something.

Then we'll just let clients choose whether to hire regular lawyers or diversity lawyers. It'll be great!
2.23.2006 8:22am
LawProfCommentator (mail):
Drill, if you look closely at the stats, it's worse than you describe; lower first-tier schools, if they want "diversity," have to take students with third or fourth tier credentials.
2.23.2006 9:24am
Observer (mail):
1) Going to law school has nothing to do with passing the bar exam. You can take a bright kid right out of college, put him through an 8-week bar review course, and he'd have the same odds of passing the bar as if he had gone through 3 years of law school.

2) I've been practising law for 25 years now and I agree with Prof. Bernstein that the current system has almost no public benefit. Law should be an undergraduate degree. The bar exam should be voluntary and open to anyone whether or not they have a law degree. Anyone who wants to practice law should be able to do so whether or not they have a law degree or passed the bar exam. Caveat emptor.

3) The only area where there is some public benefit in requiring some minimal level of competence is in trial practice, because we, the public, pay for the courts. Incompetent lawyers waste court time and public resources. I would support some form of licensing for trial lawyers, perhaps based on apprenticeship under more experienced lawyers.
2.23.2006 10:55am
anon6:
I think increasing the quality of education that blacks recieve before college is the best way to help them acheive a higher (or more equal) social status. As has been noted, blacks have (as a whole) lower credentials coming into law school, and tend to go to a law school that is too hard for them (due to AA). This results in a large percentage of black students who drop out/fail out/don't pass the bar. If they were better prepared for college, then they would most likely be better prepared for law school. I know many of the VC readers are against public education, but I'm not sure the market is going to help out blacks with regard to pre-college education, especially those who are poor and from down-trodden urban neighborhoods, a demographic in which blacks are disproportionately represented. Their parents tend to be uneducated and thus place a lower value on education, and their parents also tend to have a low income, which prevents them from sending their children to private school. What's worse, they can't afford to live in a district with a good public school, because housing and property taxes are too high in such places.

When you have a head start, its easy to win the race, and most middle-class/upper-class families would have no problems under a wholly private education system. I fail to see how low-income families would benefit from a private education system--they won't be able to afford the good schools, and the good schools won't be close to their poor neighborhoods. Maybe I'm missing something in that analysis, so if I am, please enlighten me.

It seems clear to me though, that the education that low-income students recieve before college needs to improve, regardless of whether we decided to use a private or public scheme to achieve this goal. A better foundational education for blacks and other minorities will do more for them than any AA policy will.
2.23.2006 11:08am
Houston Lawyer:
I think we can all agree that the primary problem is that there are not a sufficient number of qualified Black law school applicants. We would surely have more Black lawyers if we graduated more Black people from high school and those people did well in college. I really can't imagine that there is a law school in the country that would turn down a Black applicant over an equally qualified White one. So the whole demand by the ABA (diversity or else) is like demanding that Hillary Clinton or Newt Gingrich try to get more face time on TV. They're giving it all they got already, you don't have to take a family member hostage to egg them on.
2.23.2006 11:28am
David M. Nieporent (www):
There's an interest, not just in having more minority lawyers, but also having more minority lawyers at the top of the profession. Affirmative action in law schools helps accomplish that, no question.
"No question?" Really?

Unless "at the top of the profession" is defined simply by graduating from a top-ranked law school, _regardless of how one does there_, how do you figure?
2.23.2006 12:04pm
logicnazi (mail) (www):
So long as their passing rate isn't 0 increasing the number of minority law students, all other things being equal, should increase the percent who pass the bar [...]

I might suggest more math and statistics lessons for those seeking a J.D., actually.



Well I have to admit that my statement was unclear, I was talking about two different types of percent, it is true.

More preciscely so long as the ratio of minorities who pass the bar to those who take it is positive then increasing the ratio of minorities in law school to total law school population (assuming that law school graduates track bar exam takers fairly well and that the total number of law school students remains fixed) will increase the ratio of minority lawyers to lawyers at large.

Or trying again without all the complicated math if we increase the percent of minorities taking the bar exam we will increase the percent that pass the exam even if they don't tend to perform as well on the bar as non-minorities.

Ohh, and for the record I'm not studying for a J.D. I'm a grad student in mathematics (well logic = mathematics/philosophy actually but my thesis is squarely in recursion theory) Still the commentator was right to call me out since what I said was confusing (using percent differently in different.

On a side note some people seemed interested in my citeation for the unconcious learning bit. So here is a link to the paper "Deciding Advantageously Before Knowing the Advantageous Strategy." My point is that we need to worry that the same unconcious judgement making processes that enter into the study described can happen with women and minorities. In fact the various studies indicating unconcious bias suggest that this sort of thing might be exactly what is going on.

The reason that it makes a difference whether it is conciouss or unconciouss is the following. If we are making conciouss judgements about the quality of people we could suppress race based judgements or at least filter them out when we knew information that should eliminate the correlation between minority and worse performance created by affirmitive action, i.e., we learn that person X might be black but was promoted entierly on their merits. If the deciscion making is going on unconciously we can't do this. Even if we know that blacks are not less able than whites (intrinsicaly) and it is just affirmitive action/poor resources that makes it seem this way the unconcious processes we use to evaluate people may not be aware of these caveats.
2.23.2006 3:00pm
Mike BUSL07 (mail):

Or trying again without all the complicated math if we increase the percent of minorities taking the bar exam we will increase the percent that pass the exam even if they don't tend to perform as well on the bar as non-minorities.


I'm not a math student, and perhaps that's why I'm still confused. Suppose that currently, 20% of bar takers are minorities, half of whom pass. Suppose we increase the number of minority takers so that they comprise 40%. There is no guarantee that the number of those who pass will increase, because presumably to increase the percentage, you will have to dip lower into the pool of applicants.

By increasing the number of minorities who take the test, you cannot expect a pro rata increase in the number that pass. If anything, by increasing the number without ensuring quality, you can expect that an even smaller percentage of minorities will pass the bar.
2.23.2006 3:25pm
The Drill SGT (mail):
Logicnazi and Mike,

Without doing an analysis of your relative math skills (my background is applied math and econ), the point of my earlier post and the research that it was citing did in fact call into question the issue of whether pass rates or aboluste numbers we increased if AA was carried out to a greater extent. To use an extreme (absurd) example: If you had an applicant cohort (say 20 students) that was reasonably qualified and capable of performing work in a mid level State University Law School, let's say that 15 (and I'm making these numbers up) get through the school (75% graduation rate) and of that number 10 pass the bar on the first time (66% pass rate, is fair in California).

Now suppose you take those same 20 students and through AA place them in Harvard (to meet ABA goals), or Stanford (if you want to take the CA example farther). Now our hypothesis was that they could get into State U on their own and implied in that was that they could not get into Harvard without some form of advantage. If these 20 students are not competive at Harvard, they drop out at a higher rate (say 50%), perform poorly relative to their peers and it's possible that you end up with fewer ultimate lawyers than the 10 we got in the first example. One might even see a higher pass rate in the second case among those Harvard survivors, but an overall fewer number of lawyers.
2.23.2006 4:29pm
Robert Lyman (mail):
Prof. Berstein:

What do you suggest doing about lousy legal services from a non-bar "lawyer"?

Half of all lawyers in court cases lose, so losing isn't a per se justification for damages. Yet if you lose because your advisor/representative screws up, you ought to have recourse.

You can't have a malpractice action because it's impossible to know what standard of care to use: that of an ordinary person (that's negligence, not malpractice) or that of a lawyer (which would be inappropriate for your non-bar provider: he isn't a lawyer and that's why he's so much cheaper than a lawyer), or that of a guy who read a "do your own will book" and decided to set up shop?

The bar exam and law licenses give us a standard of care: as good as a reasonable lawyer. What do you suggest for your new regime?
2.23.2006 4:56pm
JLR (mail):
Professor Bernstein writes:

"Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education."

I'd appreciate it if he (or someone) could elaborate more specifically on what this suggestion means.
(A) Does it mean that both undergraduate colleges and law schools should be allowed to offer law degrees? In other words, would there still be law schools offering JDs for those who chose to major in, say, biochemistry in college?
(B) Would people receiving undergraduate degrees in law have to go get LLMs (or the equivalent) afterwards?
(C) Would students have to decide they want to be lawyers upon graduating high school? There are undergraduate colleges of engineering, nursing and education; however, nurses, teachers, and even engineers are not compelled to decide at 18 that they wish to enter those professions (as there are post-collegiate ways to enter the fields).
2.23.2006 5:02pm
Paul McKaskle (mail):
There are lots of issues raised in the comments as well as by the post. First, I want to underscore what several commenters have noted, that there is a finite number of "qualified" African-American candidates for law school, and while the top tier law schools (whatever they are) can admit a disproportionate number of African-American students who have adequate qualifications and expect them to be successful (in the sense of being able to graduate and pass a bar exam) there is a cascading effect on the ability of lower ranked schools to enroll potentially successful African-American students.

Second, on the issue of a "voluntary" (or no) bar exam. A variation would be to require anyone who wants to practice law to take a "bar" exam, and to inform all clients, in advance, of his or her score. (It could be made more rigorous by requiring a periodic retaking of the exam.) There would be no passing score, and there would be no prerequisites for taking the bar--other than being over the age of 18 since minors cannot make binding contracts with prospective clients. Failure to accurately report the score (and, perhaps, accurately report other potentially pertinent information, such as IF the attorney went to law school) would be fraud or a crime.

Third, I think too many lawyers look down on lesser trained but narrow specialists who are (or can be) "practicing" some aspect of law. In law firms, paralegals are used precisely because they become expert in some narrow aspect of law and can do the necessary work both capably and also cheaper than a lawyer. In California at least there are free-lance "paralegals" who do probate work. A lawyer with a general practice who knows little about the many arcane documents which need to be filed in court and with the IRS in a routine probate case can "hire" such a person who does all the work and the hiring lawyer simply "signs" the necessary documents and makes the perfunctory court appearances required. (Such a person doesn't do cases where there is a will contest or some other unusual issue, but most probates don't involve such issues.) Tax practice, labor practice, representation of an insurance company in workers compensation cases are other current examples. I suspect that family law cases could have fairer outcomes given that (in California at least) two thirds of the divorce cases have no attorney if paralegals were allowed to represent them.

As to the main issue raised in the post and by most commentators--the issue of affirmative action to increase the number of African-American attorneys, as I noted at the outset, the real problem is, in terms of law schools as a whole, there are simply not enough "qualified" applicants (whatever "qualified" may mean). Top tier law schools can admit whatever percentage of African-American students that they feel is appropriate and most will at least graduate and pass the bar. Second tier law schools will have more problems (given that African-American students who most closely resemble the qualifications of their white students have been accepted at top tier schools) and probably the African-Americans actually admitted will do less well in law school and on the bar. Further down the pecking order the likelihood of admitting a "sufficient" number of African-Americans to satisfy "diversity" or whatever goal a school (or the ABA) deems appropriate who will be successful becomes even less likely. So, the goal of increasing the number of African-American lawyers will not be met. All that will have happened is that the "better" schools will have successful African-American students (though a disproportionate number of them will be at the bottom of the class) and lesser schools, no matter how many African-Americans are admitted, will have a poor success rate in graduating them and getting them past the bar exam.

The main measure used by law schools as to whether law students will be successful is the LSAT. It is a rather imperfect measure to say the least, but no better measure now exists except how one does in the first year of law school. At my law school, the co-efficient between LSAT and ultimate passing of the bar is .30. The co-efficient between first year law grades and passing the bar is .90. The LSAT really doesn't tell much about a particular individual, rather it tells much about large numbers of individuals. Of the hundreds of individuals who have, for example, a 170 LSAT, the only useful information for a law school is that some fairly high percentage of them (perhaps 90%) will do well in law school. But some much smaller percentage of the 170 LSAT scorers will do poorly and may even flunk out. Of the hundreds of individuals who have a 140 LSAT, a very small percentage will do well in law school (perhaps only 5 or 10%) and most will do poorly and are likely flunk out. When a law school fills a first year class, it tries to maximize the number who will do well and minimize the number who do poorly. The obvious answer, admit as many high LSAT scorers as possible. (Most law schools do take other factors in consideration, mostly undergraduate grades. The correlation between ugpa and law school success is much weaker than for LSAT, but the two in combination is slightly more predictive than either one alone. But, LSAT is the primary determinant in admissions at most law schools--at least those law schools which cannot fill the entire entering class with students with 170 or better LSATs such as is likely at Yale.) I teach at a law school with "wobbles" between second and third tier status on the USNews listings (though our median and quartile LSATs are well up into the second tier) and if we wanted to double the number of African-American students actually enrolled we would have to accept students in the low 140s are even high 130s LSATs to reach this goal. Based on past statistics, the likelihood that very many of these students would graduate and become successful lawyers is very small.

One commentator suggests that even a small increase in African-American lawyers is better than none. Perhaps so, but at what cost. Most law schools cost in the neighborhood of $30,000 a year, and while there are some scholarships (especially at top tier law schools) the "additional" African-Americans admitted at lower tier schools are likely to have to finance their entire education. There is also income lost by postponing alternative employment. Thus, most of the cost of African-American students who fail is going to be borne by segments of the African-American community. If ninety percent of the African-American admittees admitted to top tier or near top tier law schools succeed, very likely that, overall, it is good for the African-American community as a whole (especially since at top tier law schools there is likely to be generous financial aid). But if only half succeed at a lower tier law school, is this a worthwhile bargain for the African-American community? (I have at least one colleague who thinks so.) But I think it is far more questionable as to the worth to the African-American community if only 20% or 10% succeed. If one out of five succeeds, the resources of the African-American community has had to invest close to a half-million dollars for each successful lawyer, and that doesn't count the psychological cost to those who failed. That is a moral question upon which I think it would be interesting to hear the opinion of the ABA.

Finally, perhaps the best way to winnow out those who are likely to succeed in law school is to abandon the LSAT and have, instead, mandatory "pre-law school" academies, where students would enroll and take, say, three law school courses over a four to six month period--perhaps a four unit torts class (the number of units required at a number of law schools), a three unit criminal law class and a three unit criminal procedure class (which has little overlap with criminal law so they could be taught at the same time). This would allow students to be tested on the ability to learn about a common law course (torts), a statutory course (criminal law) and a constitutional law course (criminal procedure). The classes could be quite large (the over-riding purpose being to determine if the student has the ability to succeed in law school) and hence, fairly cheap. Even without state subsidy, the tuition could be well under $10,000--expensive, but much less than the $30,000 that most law students spend for the first year (and not a great deal more than what some students spend on preparing for the LSAT). Given that the coefficient between first year grades and bar passage is very high (.90 at my law school) every law school could admit students with much more confidence as to whether they would graduate. And the students who don't do well on the LSAT but, in fact, can succeed in law school, have established the fact by success in a "pre-law" academy. The law school curriculum could be shortened by 10 units so that the total time in law training would not be increased by very much and for those who can't handle law school, the cost of failure would be much less.

Obviously this would take a major restructuring of law schools so I guess it won't happen (assuming it makes sense, and I'm sure many would disagree.) But it would be a potentially more constructive approach than having the ABA engage in cost-free (to it) politically correct posturing which may well impose huge costs on a poor minority community if it were to be carried out.

One final comment. Several commentators note that there are a lot of non-accredited law school graduates taking the California bar and their success rate is poor. That is true (although the percentage of non-ABA accredited graduates taking the bar is not as large as some might assume), but there are several ABA accredited law schools who have below 50% first time pass rates.
2.23.2006 5:55pm
Mike BUSL07 (mail):
I apologize if someone already cited this, but what really shed light on this issue for me was the Richard Sander study in what I think was Stanford Law Review. Good empirical support for the position that minority candidates are themselves the biggest losers in AA, since they are bumped up to schools where they cannot hang.
2.23.2006 6:18pm
The Drill SGT (mail):
Thanks Mike. I previously said that I was trying to paraphrase a UCLA Econ /Poly sci proff, when it was Sandler, a Law Prof / Economist. Here is an extract of his research from his www site.

A Systemic Analysis of Affirmative Action in American Law Schools

Summary




Richard H. Sander

Despite the prevalence of affirmative action policies in higher education, scholars are only beginning to study seriously the relative costs and benefits of racial preferences in admissions. The recent development of several large, longitudinal datasets on law students and lawyers has made it possible to ask more ambitious questions about the operation and effects of these policies. A Systemic Analysis asks a number of these questions, and reports surprising answers. (This article focuses only on blacks and whites.)

—First, the levels of racial preferences at American law schools are very large and remarkably homogenous across institutions, operating in ways that are generally hard to distinguish from racially segregated admissions.

—Second, black students admitted through preferences generally have quite low grades in law school -- not because of any racial characteristic, but because the preferences themselves put them at an enormous academic disadvantage. The median black student starting law school in 1991 received first-year grades comparable to a white student at the 7th or 8th percentile.

—Third, these low grades substantially handicap black students in their efforts to complete law school and pass the bar. Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%.

—Fourth, the job market benefits of attending an elite school have been substantially overrated; regression analysis of job market data strongly suggests that most black lawyers entering the job market would have higher earnings in the absence of preferential admissions, because better grades would generally trump the costs in prestige.

—Fifth, it is far from clear that racial preferences actually cause the legal education system to produce a larger number of black lawyers. Careful analysis indicates that 86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces.

In the case of blacks, at least, the objective costs of preferential admissions appear to substantially outweigh the benefits. The basic theory driving many of these findings is known as the "academic mismatch" mechanism; attending an advanced school where one's credentials are far below those of one's peers has a variety of negative effects on learning, motivation, and goals that harm the beneficiary of the preference. Over the past several years, a wide range of scholars have documented the operation of the mismatch mechanism in a number of fields of higher education.

These findings have stoked substantial controversy, and this website seeks to aid readers interested in plumbing this work further. One set of links provides a description of the major types of data used in the study; another set of links leads to a "downloading" page, where users can actually download manuals and datasets that can be analyzed by most statistical programs. We will be adding links to critiques of the article, responses to those critiques, and supplemental analyses on points not fully elaborated in the article.
2.23.2006 6:53pm
The Drill SGT (mail):
Paul, if one considered the cost of foregone income of 4 students who fail to pass the exam, times 4 years (3 school plus a year trying to pass) the added cost to the black community might be an additional $800,000
2.23.2006 6:55pm
Paul McKaskle (mail):
Drill Sgt: Probably so, but I was unwilling to push the case to the extreme. Besides, many (too many) students work a substantial amount (which may make their failure even more likely) so the "net" foregone income may not be quite as great as your calculation. But, no matter how it is measured, the "cost" to the African-American community (or segments of it) is very high, and no-one on the governing boards of the ABA has to pay any of it.
2.23.2006 9:10pm
Marcus1 (mail) (www):
David Nieporent,

Am I wrong that going to a prestigious law school raises ones prospects upon graduating?

As I understand, if you're not at a top 20 law school, you can barely get an interview with many of the prestigious, high-paying, big-city law firms.

Are you really suggesting that Harvard doesn't add anything to a resume that a school like the University of Akron doesn't provide?
2.23.2006 9:19pm
Lev:
Re: Marcus1 2.23.2006 9:19pm

As I understand, in your view if one does not go to a top 20 law school, or one does not work for a "big city prestigious law firm" one is a complete and total failure?

Are you really suggesting competence, fulfillment, service to society, and happiness can only be found by Harvard graduates?
2.24.2006 12:23am
Lev:
With respect to affirmative action and the effect of "less qualified" individuals being placed in schools beyond their capabilities, it might be worthwhile to look at the general California state undergraduate system after Prop 209.

In a LA Times story looking at the first academic year after Prop 209 passed, the LA Times found that the number of "minority" students, by which it meant nonWhite nonAsian students, decreased at the highest quality state institutions, e.g. Cal Berkeley, but increased at the other state institutions, e.g. Cal Riverside. And the increases at the "nonelite" campuses, were much greater than the decreases at the "elite" campuses.

The expected result would be a higher graduation rate, and higher graduate numbers for the "minorities".

Of course, all those poor slobs who couldn't get in to Berkeley had their lives ruined.
2.24.2006 12:29am
The Drill SGT (mail):
Lev,

As a grad of 2 of those UC campuses, I would postulate that graduating from Davis is better than attending Berkeley and not graduating.

How's that for sound reasoning from a non-elite grad?

UCD 74 Econ
UCI/UCLA 79 MBA(OR)
2.24.2006 7:48am
Duncan Frissell (mail):
In the past, the study of law in the US was an ordinary tertiary study. Thus students received an LLB degree (Legum Baccalaureus - Bachelor of Laws). [Latin students will recall that LL was used in the language to indicate that Legum is plural.] After they uppped it to graduate study, law schools continued to award the LLB until they came to dislike the truth telling involved in the word Bachelor and switched to the utterly spurious Juris Doctor.

As with housing for the poor (where the government outlaws the construction of housing for the poor and then whines that there's no housing for the poor), professional licensure is a sick joke. Lawyers are paid scribes and rhetoriticians. Anyone who can read, write, and speak (admittedly a small group in the modern era) can learn to practice law. Particularly since the invention of the Internet.
2.24.2006 10:08am
JLR (mail):
Here is a comment prompted by Professor McKaskle's interesting insights and recommendations.

Professor McKaskle recommends replacing the LSAT with
mandatory "pre-law school" academies, where students would enroll and take, say, three law school courses over a four to six month period--perhaps a four unit torts class (the number of units required at a number of law schools), a three unit criminal law class and a three unit criminal procedure class (which has little overlap with criminal law so they could be taught at the same time).
To make such academies mandatory is, with all due respect, a solution that is worse than the original problem. Certainly for those students who can score above 160 on the LSAT, such academies would not only be pointless, but also counterproductive and economically detrimental. The registration fee for the LSAT is $115 (with fee waivers for those financially unable to pay the fee). $115 would be much, much less than any "pre-law academy" tuition, even with a FAFSA-like financial aid system in place. To replace LSATs with "pre-law academies" would not eliminate the hierarchy of law schools either; presumably each of the top 50 law schools would start their own pre-law academies that would accrue the same prestige as their parent law schools. "Pre-pre-law academy" prep courses, so to speak, would pop up just like LSAT prep courses do. The pressure system would build towards gaining acceptance to "pre-law academies" rather than law schools themselves. In my opinion, making "pre-law academies" a new mandatory regime would create more problems than it solves.

However, Professor McKaskle's recommendations are wise if they were instituted as an optional, supplementary regime to the current LSAT system. For those with LSAT scores in the 140s or lower, or even for those who have a wide disparity between undergraduate grades and LSATs (say, an A or A+ GPA, but an LSAT score lower than 160), a pre-law academy would be an excellent way to either prove one's mettle for law school generally, or work one's way up into a higher tier of law schools specifically. Of course, some law students do that currently by transferring to another law school after performing well at the beginning of their law school careers. But a pre-law academy could very well be a much more economical and hassle-free way to accomplish such a task, and would also enable access to a JD degree for those whose LSAT scores are too low to enable access to any law school at all. I find Professor McKaskle's recommendations very intriguing, but only as an optional supplement to, and not a mandatory replacement for, the LSAT system currently in place.
---------------

Now, to reiterate the three questions I posed in an earlier comment from 2.23.2006 at 5:02pm, which you can find by clicking on [this link] :

Professor Bernstein writes:

"Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education."

I'd appreciate it if he (or someone) could elaborate more specifically on what this suggestion means.
(A) Does it mean that both undergraduate colleges and law schools should be allowed to offer law degrees? In other words, would there still be law schools offering JDs for those who chose to major in, say, biochemistry in college?
(B) Would people receiving undergraduate degrees in law have to go get LLMs (or the equivalent) afterwards?
(C) Would students have to decide they want to be lawyers upon graduating high school? There are undergraduate colleges of engineering, nursing and education; however, nurses, teachers, and even engineers are not compelled to decide at 18 that they wish to enter those professions (as there are post-collegiate ways to enter the fields).
----------
Thank you.
2.24.2006 10:22am
DavidBernstein (mail):
(1) yes
(2) no (though an apprenticeship would be a good idea)
(3) no
2.24.2006 11:38am
JLR (mail):
Thank you Professor Bernstein for your answers. I greatly appreciate it.

It would seem that the underlying normative premise behind your answers to my questions is that, in the realm of legal education, creating more competition where there is currently a form of oligopoly would be appropriate. I certainly agree with that. Of course, the devil is always in the details, but as a general recommendation it makes a great deal of sense. Thanks again for your reply.
2.24.2006 2:26pm
JLR (mail):
P.S. I should of course point out that I am using oligopoly in a loose, metaphorical sense. Just wanted to clarify that; thanks.
2.24.2006 2:30pm
JLR (mail):
P.P.S. Although technically universities generally do comprise an oligopoly market. Thanks again for allowing the postscripts.
2.24.2006 2:39pm
JDNYU:
Professor McKaskle's analysis is incomplete in that it seems to treat the set of minority law school candidates as fixed. There are many minority students that would make excellent lawyers but choose to enter another field.

To the extent that afirmative action programs entice some of those candidates to come to law school instead, the results don't have to be as bleak as the analysis suggests. I am not suggesting that the ABA's requirements will have this effect because I have no evidence one way or another.
2.24.2006 4:39pm
logicnazi (mail) (www):
Yes, yes I agree that if affirmitive action shifts the students taking the exam from the easier to harder schools we could end up actually reducing the percent of minority lawyers. I even suggested exactly such a concern in my original post (or maybe that was on the other post).

All I am saying is that all other things being equal more minorities taking the bar exam = more minorities passing the bar exam. If the total number of lawyers stays fixed this means a greater percentage of minority lawyers. I think everyone gets this point and is just getting confused because they assume with all the talk of percent and this and that I am saying something more substantive than I really am.


For a quick example this is all I mean (supposing affirmitive action doesn't shift around minorities amoung schools *in a way that hurts them*).

Suppose without affirmitive action there are 100 law students graduate each year and take the bar. Suppose further that 20 of these are black (20%). Suppose out of this 20 black students 20% of them pass the bar while the overall rate of bar passage is 50%. Thus without affirmitive action each new batch of lawyers is .20*20/(.5*100)=4/50=8% black.

Now suppose we add affirmitive action and now instead of graduating 20 black law students a year we graduate 40% (this number is really arbitrary like all of them I'm just picking something concrete to make the math easy). These extra 20 black graduates might not be as qualified as those who got in without affirmitive action so maybe they only have a 10% passing rate. This means now that 20*.2 + 20*.1=5 black lawyers pass the bar each year. Assuming the total number of law students is fixed this means at worst we now have 10% black lawyers in each new batch (likely more since they will take the place of other people who might have passed the bar lowering the overall rate of passage).

Of course this simplistic analysis may very well turn out to be wrong because going to better schools means a higher rate of failing out. All I was saying initially is that just showing that black lawyers pass the bar at a lower rate doesn't tell you that affirmitive action doesn't help.

Also I worry that affirmitive action has negative effects increasing unconcious racism but that is another story.

Sorry to confuse people so much making such a simple point.
2.24.2006 7:09pm
logicnazi (mail) (www):
So I just read the suggestion blackprof.com has about making schools publicly state their policy on preferences, though I'm afraid backlash against affirmitive action would end up scuttling the program *even if* we had good reason to believe it was helpful. Ultimately though the problem is we have no good idea if preferences accomplish their ultimate goals because we don't know what those goals really are and if the minority recruitment is really aiding the goals we care about or just giving the school good PR.

So I propose we go a step further. Rather than merely requireing schools to state their racial preferences and make some vague statement about 'diversity being important to the educational mission' each university should be required to articulare both their normative goals and why they believe using their resources in the fashion they do is a better way to achieve these goals then donating the same money/resources to underperforming schools with many minorities (to an early comment I really would give this idea serious consideration) and perhaps several other default options (I'm not suggesting we make them defend their program as the best possible thing they could do. Only as better than a few standard easy alternatives).

There are many possible justifications for affirmitive action/preferences or for the lack of such preferences. Amoung them are

1) Selfishly it is important for the students at this school to be educated with people of many races.

2) As a matter of fairness to correct past wrongs or compensate for current racism

3) Simply a correction factor to account for lower performance by minorities than their true abilities.

4) Increasing the number of succesfull minorities in the workforce will provide more role models and help alleviate racism.

5) To reduce raicism by making sure people have the opportunity to become familiar with people of many ethnic backgrounds.

Right now universities just adopt vague language which is just a hodgepodge of all of these. The problem with this is that these different goals have *very* different policy implications. For instance if the motivation is 1 it is justified to steal minorities from other schools even if this reduces the overall number of minorities.

If the answer is 4 or 5 then we shouldn't implement affirmitive action until we have some good evidence, or at least strong reason to believe the positive effects will more than outweigh any backlash or negative effects that possibly having an enviornment where minorities are more likely to be at the bottom end of ability.

If 3 we should only implement preferences in so far as it doesn't result in lower graduation rates for minorities. While if 2 we might implement affirmitive action programs even though we have good reason to believe they actually harm race relations overall through resentment or some other mechanism.

In summary I'm *theoretically* in favor of preferences for minorities *if* they have the effect of significantly reducing racism in the long run. Practically however the reluctance of instutitions to really analyize the goals and ask whether we have good evidence the policy favors those goals. I like your suggestion of making schools articulate their stand on preferences and if we took it a step further maybe something could be done about the waste of money/effort to improve school PR when that same money/effort could be spent in ways that really help minorities.
2.24.2006 7:35pm
Starlight (mail):
Having once been a civil rights worker (federal agency employee) in the rural South, I can say with basis and conviction that the last thing any minority community needs is more less-than-competent "minority" lawyers. Those communities need more MORE-competent lawyers because they'll face an uphill fight throughout their entire careers.
2.25.2006 5:52pm
Stephen M (Ethesis) (www):
BTW, if anyone really cared about the students, they would send them to: http://phdproject.com/

Much like the engineer in Stand and Deliver, the people behind this program have a direction that can provide hope and employment.

How many kids from the bottom of the class of a fourth tier law school are headed toward tenure track jobs at around six figures in a market with seven openings for every five graduates?

The people in the PhD Project (aimed at focusing people to get PhDs in Business) are doing just that.

If you want positive role-models with good skills who can make a positive impact on their society, I'd suggest putting people into programs that make a difference.

There isn't room, but 50% of the kids who go to law school would have made more money, and worked less, if they had gotten a PhD in business -- not to mention, they pay you to go through a business PhD program. How many people going to law school get tuition waivers and a stipend of 14K-20K for the entire experience?
2.26.2006 8:09am