After an email exchange, Scott Greenfield is no longer banning me from commenting at his blog, Simple Justice. That pleases me greatly, as Scott’s blog is one of the best if not the best criminal defense blogs out there, and I continued to read him daily despite the sting of being banned.
Today Scott concurs with Dan Slater in blaming law schools and the ABA for letting too many people into the legal profession. He argues that when there are too many lawyers running around, the oversupply inevitably means there will be too many desperate lawyers in hotpants trolling the streets and the internet for their next client/meal, to the detriment of what was once an honorable profession. Scott thinks the first step in changing this sorry state of affairs is to close the supply valve to a trickle.
I, on the other hand, think the solution is to turn the spigot wide open. Part of the endemic desperation Scott identifies is likely caused by law school debt and the foregone opportunity costs of three years of law school, as well as the unrealistic expectations of those who’ve made this investment that the investment should pay off handsomely. These expectations are all the more unrealistic because law school, despite its significant costs, does precious little to actually prepare students for the practice of law. The expectations are based primarily on the sunk costs, rather than any benefit the newly-minted lawyer can offer clients by virtue of his law school education.
The solution, contra Greenfield, is not to raise the barriers to entry, but to lower them drastically, by eliminating the artificial costs of becoming a lawyer and the artificial attractiveness and expectations of the legal profession associated with those costs. Since I’ve already said something similar in a comment on a previous Simple Justice post, I’m reproducing that comment below and deferring until a later day (when I can say something I haven’t said before) venturing back into the comment threads at Simple Justice:
I’m of two minds on this. As a relatively new lawyer (although I’ve had my degree since 1999, I spent the few first years out of law school tilting at a windmill that ultimately kicked my ass royally, followed by the next several years living in a funk and merely dabbling in law) struggling to get by and grow my practice, I’m not crazy about the prospect of increased competition. On the other hand, I’m a hardcore principled libertarian, and see most licensure laws as a device primarily designed not to protect the consumer but to protect the incomes of the already-credentialed.
Why are so many attracted to the law, leading to our society’s production of so many (some would say too many) lawyers? A major reason is that the lawyer still has a privileged and vaunted status in society, akin to that of doctors, while the 3 year law degree is far more do-able for more people than the education required to become a doctor. What if that vaunted status conferred by merely becoming a lawyer was eliminated by eliminating the current barriers to entry? (You’ve already established on this blog that law school does almost nothing to prepare law students for the actual practice of law anyway.) The profession would undoubtedly become much less attractive to status-seekers and rent-seekers, while those who are genuinely interested in the law and have an actual talent for it would still pursue their calling on that sounder basis.
Just as in the music business (which doesn’t require a license), those of us who are especially motivated and/or talented can still rise to the top of the profession and become “stars,” commanding high fees commensurate with the value provided.
I’m also of the mind that law should be the province of the people and not of the profession. It’s a real problem when somebody without a lot of money is, for example, going through a divorce and needs representation. He or she should be able to afford such representation, but in our current system such representation can be almost or actually out of financial reach. That would be less the case if the barriers to the profession were reduced or eliminated.
As someone who has already gone through the spanking machine of law school followed by bar exam, and has literally paid my dues, it’s not in my financial interest to say to other would-be lawyers, “you don’t have to pay the same dues I did; come on in, the water’s fine.” But if I’m being principled about the question, the relevant point of time in my life to consider is not where I am now but where I was before I started law school. If I had the option then of forgoing law school, at the cost of entering the profession without the benefit of the automatic and artificial credibility and status conferred by a law degree, I would hope that I would have elected that more merit-based approach.
For the record, I think society would also benefit by tearing down the barriers to the medical profession as well, a la Milton Friedman.