Law schools, scholarship, and lawyer licensing

Brian Tamanaha started off a fierce debate when he questioned whether non-elite schools should invest in interdisciplinary scholarship:

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. * * * The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

Brian Leiter asked for comments, and got many. Belle Lettre collects posts. Dan Solove responded emphasizing the value of multidisciplinary work. My colleague Larry Solum posted a very thoughtful treatise on the broader issues raised by Tamahana's post. He argues that lawyers should be exposed to a "canon" of readings that "every legal academic should be embarassed not have read," and that "[o]nly a PhD in law can provide the study of law with an intellectual core."

I think it’s important to separate a couple of points here. First, it is highly questionable whether interdisciplinary scholarship in itself contributes to the high price of legal education. In other words, the Tamahana post that started all this really combined two unrelated problems – the high cost of legal education, and the question whether law schools should go multi-disciplinary.

Second, the real question about the efficacy of law school investment really gets to what drives law school investments in anything, including scholarship generally. One answer is ratings competition. Bill Henderson and another of my colleagues, Andy Morriss, have written provocatively that emphasizing scholarship in hiring has minimal USNWR rankings payoff for most schools. They explain that the emphasis on scholarship produces gains for faculty rather than for students or society. Here’s my comment on that paper.

Third, there is the important question of whether law school, for whatever reason, costs too much. George Leef has explained that it’s all about ABA accreditation, which forces law schools to be non-profit, staffed with full time scholar-instructors, run for three years, with an extensive library, etc, none of which clearly produces better lawyers. Leef characterizes this as the result of “collusion between state legislatures and the American Bar Association. . . If we allowed a free market in legal education, the cost of preparing for a legal career would fall dramatically." I commented:

Of course these standards are given bite by state lawyer licensing laws that require lawyers to attend such schools in order to "practice law." Why have such laws? Sure, we might want to have some quality control, but couldn't we live with certification -- that is, quality-certifiers that lawyers can choose to belong to, or not? This would produce a variety of types of lawyers to suit a variety of different needs. Under the current system, high priced mandatory license produces restricted supply and not enough lawyers to, for example, meet the needs of lower-income clients.

For more on state lawyer licensing, see my article Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004), draft here.

This critique of the high cost of mandatory legal education for lawyers has become more salient as attention has been drawn to the plight of students who are sucked into non-elite schools based on unrealistic expectations of career prospects, only to end up with $40,000 jobs and $100,000 in debt. Even worse for society is the effect of the high cost of legal training on the availability of practical legal assistance for the poor and middle-class in a society that is increasingly riddled with law.

I strongly sympathize with the notion that our society needs people with the sort of wide knowledge that Larry Solum recommends (though I’m frankly skeptical that the PhD in Law will ever become viable). I also like the idea of competing concepts of legal education.

However, the current system of forcing everybody who wants to practice any kind of law into three-year, high-priced law schools will never produce that competition. Instead, the cartel forces practical/doctrinal training to coexist uneasily with lawyer-scholars, and results in training that compromises the needs of all kinds of lawyers.

In short, the real question is not whether multidisciplinary legal scholarship is a good thing – it clearly is.  What I want is an argument as to why such high-level training should be forced down the throats of everybody who wants to practice law. The question is whether our current system of lawyer licensing is, on balance, a good thing, or whether society’s needs would be better met by voluntary certification or much narrower licensing requirements that allow for cheaper training of at least some kinds of legal specialists. This is the debate we need to be having.

Comments

[Fat Man]

Law School is trade school, just like HVAC school. A Lawyer has no more need of inter-disciplinary theory than an HVAC tech has of Statistical Mechanics (Even though the later is indisputable truth and the former is mostly politicized rubbish [at least in Leiter's case]).

One real problem with las school is that the third year is a waste. Back in the middle of the 20th century, Fred Rodell, a Yale Law prof, proposed abolishing the third year because it is a waste.

Of course, if a law program is two years, it can probably be taught as an undergraduate major, as it is in England.

Finally, I think the available evidence is that the US has too many lawyers and too many laws. the real way to save money would be to limit the laws.

[RDK]

As a third year law student I am not sure that I agree with Fat Man that the third year is a total waste. At my school there are plenty of classes which I still want to take and I think many of them will serve me well when I practice. It has taken me three years to figure out what exactly I am learning and what I should be trying to accomplish here. The first year of law school is set for you so you really only have two years to pick your own courses and discover what it is you want to do. I would not have been able to take a clinic or explored anything beyond core corporate courses if I only had two years of law school.

I do see the tension though between law school as preparation for a profession and law school as an academic pursuit. At many schools students are expected to write one significant research paper while they are at school. While this might be a useful experience for 25% of the students I think it is a bit of a waste of time for the vast majority of us. But this is not so different from the liberal arts education that most of my colleagues at law school had as undergraduates. I was never going to be a history professor but my undergraduate professors taught me as if that was what the goal of a BA. The focused professional goals of law school though make it different then college for most of us. As a result, there is a more stark contrast between the academic multi-disciplinary legal education and the professional develop most of us are focused on in Law School.

[Robert J. Peterson]

Do you really think a PhD in Law is really necessary? After all, it's not like there is a shortage of applicants for academic jobs. If law schools thought it particularly valuable to have professors who have read a particular canon, couldn't you make it a hiring criterion? Also, one of the advantages of current law faculty (in my opinion) is that it combines such a wide array of skill sets and backgrounds, and I'm not sure a pure academic program (a la Solum) would achieve that. Rather, it would further divorce legal academe from not only the practice of law but also the practice of public policy.