Kathleen Sullivan, accreditation, and the problems of lawyer licensing

Two related items crossed my virtual desk when I was not there to receive them. First there was Kathleen Sullivan, former Stanford dean, failing the California bar exam, discussed by Steve Bainbridge. Although some defend the strictness of the exam as a counterbalance to all the unaccredited California law schools, that wouldn’t explain the bar exam’s disproportionate effect on non-California lawyers relocating to California (and who presumably didn’t attend the unaccredited schools).

In Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004) (draft here) I show how weak the case is for lawyer licensing requirements based on the usual justification of quality assurance. I make an alternative argument based on giving lawyers a sort of “property right” in the law of state or states in which they’re licensed. But I recognize that the case for licensing on this ground is not very strong, and anecdotes like the Sullivan story don’t increase my confidence.

The other relevant item is Rachel Moran’s paper, Of Rankings and Regulation: Are the U.S. News & World Report Rankings Really a Subversive Force in Legal Education?. As summarized in the abstract, Moran asks:

Why are the rankings relatively stable over long periods of time despite vigorous competition? Why has a plethora of alternative rankings systems not emerged? Why do schools limit their strategies to gaming the U.S. News & World Report ("U.S. News") rankings, even when there are perverse consequences, rather than undertake bold reforms to gain prestige and value in the marketplace? These puzzles become far less vexing when the dominant paradigm is one of cooperation rather than competition. In fact, norms of uniformity and standardization have dominated the world of legal education, substantially limiting law schools' ability to compete against one another. To advance law's professional stature, the accreditation process has regulated legal training so that students receive a quality education and clients get competent lawyers. Given this framework of comprehensive rules and regulations, no law school has been able to pursue radical innovations without jeopardizing its accreditation, its reputation, and its future. In a world of highly constrained competition, schools have few ways to improve their standing through strategies that upset the prevailing wisdom about how best to deliver legal education. As a result, law school rankings largely remain stable over time, and different methods of ranking overall quality yield similar results. With full-bodied competition curbed by the accreditation process, schools rely on gaming to influence the U.S. News rankings rather than strike out in novel directions to gain prominence.

The accreditation process is, of course, the alternative to screening through the bar exam. In my article cited above I discuss evidence of the perverse effects of accreditation, particularly including restricting the poor’s access to legal services. This might be an acceptable cost if the accreditation offered some real quality assurance, but counting the books in a law school’s library and many other accreditation standards have little to do with quality of education. Moreover, you can’t tell much about a lawyer's quality by measuring the inputs early in her lawyer.

Again, the explanation isn’t quality control but property rights – raising the entry barrier restricts the number of lawyers, and thereby gives each a bigger stake in her state's law, thereby incentivizing participation in lawmaking. But, again, this benefit is limited and may well be outweighed by the costs, including its restriction on competition among law schools.

Licensing has other perverse effects, such as imposing restrictions on the business of practicing law that may actually hurt clients. See my articles Ethical Rules, Agency Costs and Law Firm Structure, 84 Virginia Law Review 1707 (1998) and Ethical Rules, Law Firm Structure and Choice of Law, 69 U. Cin. L. Rev. 1161 (2001).

The answer may be to replace licensing with certification. Anybody can practice law, but only those who pass the standards of a certifying organization (e.g., bar association) can call themselves certified. Or perhaps the licensing standards can be set to serve limited goals, such as the smooth functioning of the courts, leaving the rest to certification. These approaches would permit the development of, for example, levels of lawyers and competition among models of legal education.