Law School Letdown

, George C. Leef, Leave a comment

Strange as it may seem, it is quite possible for someone who has never gone to law school to be a good attorney.

An article that appeared recently in The Wall Street Journal makes that exact point. In “Meet the Clients,” (available here) New York attorney Cameron Stracher writes, “One of the biggest problems with the current state of legal education is its emphasis on books rather than people. By reading about the law rather than engaging in it, students end up with the misperception that lawyers spend most of their time debating the niceties of the Rule Against Perpetuities rather than sorting out the messy, somewhat anarchic version of the truth that judges and courts care about.”

In the course of his article, Stracher refers to two cases where individuals who had not gone to law school at all had served quite capably as attorneys. Here’s what he had to say about one of them:

“In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.”

If it’s possible for someone to become a capable attorney without taking any law school classes (or the bar exam, for that matter), you have to wonder if the prescribed form of legal education is all it’s cracked up to be. And a recent study from the Carnegie Foundation for the Advancement of Teaching confirms one’s doubts.

The American Bar Association and Its Impact

But first, some history. Education for the practice of law has followed a pattern dictated by the American Bar Association (ABA) for the better part of the last century. Beginning in 1921, the ABA sought to “professionalize” legal education in the United States. It did so by using its considerable influence to get state governments to pass legislation making it necessary to graduate from an ABA-accredited law school before anyone could attempt to pass the state bar exam. That is the law in most states today, making the ABA’s view of what legal education should be the only view.

The most obvious problem with this arrangement is that it makes it possible for the legal profession to engage in anti-competitive behavior to artificially keep down the number of practitioners in the field and thereby artificially increase the earnings of those who are allowed in. No less a legal superstar than federal judge Richard Posner has argued that the legal profession generally acts like medieval guilds did to limit competition (see “The Material Basis of Jurisprudence,” 69 Indiana Law Review 1 (1993)) and I have argued here that the ABA’s accrediting standards do a lot to increase the cost of getting a legal education without doing much to ensure its quality. For example, law schools must be non-profit institutions if they are to receive the ABA’s stamp of approval. What’s wrong with the profit motive in education, though? And the use of adjunct faculty is strongly discouraged in favor of full-time professors, despite the fact that full-timers cost more and adjuncts may very well have more practical knowledge about the actual business of lawyering than do full-time legal scholars.

The fact that a few people have leveled criticisms at its chosen model for legal education has had about as much impact on the ABA as firing a .22 at an Abrams tank. Recently, however, a report was issued that will be hard to ignore.

The Carnegie Foundation Report

Released in January, the Carnegie Foundation a study titled Educating Lawyers: Preparation for the Profession of Law (available here) makes a strong case that the current form of legal education is not very effective. Co-written by four Carnegie Foundation scholars and Professor Judith W. Wegner of the UNC School of Law, the paper identifies two major weaknesses in the law school experience. First, law schools usually “give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.” Although law students must learn a great amount about many different fields of law, they have little or no exposure to the details of handling real cases. Consequently, the report states, law school conveys the impression that “lawyers are more like competitive scholars than attorneys engaged with the problems of clients.”

The second weakness is that law schools “fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills.” Although a course in legal ethics is usually required, it’s often a snooze class. Professional schools in other fields usually employ “well-elaborated case studies of professional work,” but this is rarely the case with law schools. In other words, law students spend too much of their time studying the details of legal specialties they will probably never need to know anything about (Antitrust Law, for instance, just to pick something near the front of the alphabet), and not nearly enough time on other important aspects of being a legal professional.

To anyone who thinks that merely because someone has graduated from law school, he “knows the law” and is capable of providing a client capable assistance, the Carnegie Foundation report is like a cold shower. It’s telling us that law students spend three or more years of their lives and huge amounts of money just to become qualified to start learning what they really need to know. While it’s true that law schools are good at instructing students in some basic things – how to do legal research and to “think like a lawyer” — the question is whether it needs to take so long and cost so much to accomplish that.

Perhaps the legal profession will take the recommendations of the Carnegie Foundation to heart. It’s easy to imagine all kinds of changes, some cosmetic and some real, coming about as a result of this high-profile criticism. Unfortunately, the Carnegie Foundation failed to ask the radical question – whether law school is necessarily the best place for aspiring lawyers to learn their trade.

Changes We Need

Prior to the ABA’s big push to dominate legal education, those who wanted to become lawyers could attend a law school (of which there was quite a wide variety) if they wanted to, or they could join up with an established lawyer or firm as an apprentice for total on-the-job training. That was the way the majority of lawyers learned their trade in the 19th and early 20th centuries. Was that a bad thing? There certainly were some incompetent lawyers back then, but there are also incompetent lawyers today. As the Carnegie Foundation report suggests, graduating from a law school does not ensure that one will be a competent legal representative – that law school is not a sufficient condition for legal competency.

The Carnegie Foundation is correct in observing that law schools are weak at teaching prospective lawyers the kinds of client-representation skills that Stracher’s adversary had mastered so well on his own. The fact, however, that it is quite possible for people like him to learn those skills somewhere other than in a law school ought to cause us to wonder if a formal educational setting is really the best place for lawyers to develop the representational skills they need. That competent paralegal may have been so good because he observed lawyers in action. If he had spent three years in law school, he probably would have known less about how to advocate for his clients.

So let us hope that American law schools take the Carnegie recommendations seriously, but we should also ask our politicians to consider the possibility of allowing people to take the bar exam without having gone to law school – as a few states do. No, law school isn’t a complete waste of time, but neither should it have a monopoly on the educating of lawyers.

George Leef heads the John William Pope Center for Higher Education Policy. This column originally appeared in the Pope Center’s Clarion Call.