On My Mind Lowering the Bar George C. Leef,
07.21.03
Forbes Magazine
You don't need affirmative action to increase minority
enrollment in law schools.
Just cut those steep tuition fees.
The Supreme Court's recent decision that universities
may use racial classifications in admission decisions, as long as they aren't
too mechanical about it, has many people wondering whether there isn't a better
way to help minority individuals get into top schools. In the case of law
schools, at least, there certainly is another way. If legal education weren't
kept so artificially expensive, far more minorities (and unaffluent
nonminorities) could afford to get into the legal profession.
Law school is extremely costly. Tuition, fees and books
at the typical urban school run $25,000 per year and up. It takes three years to
earn a law degree. Add the student's opportunity cost of lost income to the cash
outlays and you have an extremely hefty investment. A study released last year
found that the typical law student graduates with a debt of $84,000.
Does a legal education have to cost as much as it does?
No. Law school costs much more than it needs to because lawyers benefit from
having a high barrier to entry into their profession.
The U.S. used to enjoy the benefit of a free market in
legal education. In the 19th and early 20th centuries there were several paths
into the legal profession. One was to study law solo, as Abraham Lincoln did.
Another was to become an apprentice in a law office and learn on the job, as
Clarence Darrow did. The third option was to attend a law school, most of which
offered a one- or two-year course of study. Only a small number of elite schools
had a three-year curriculum.
In 1921 the American Bar Association began pressuring
state officials to adopt its preferred (and high-cost) standards for legal
education. Most states did so, and today only a handful allow a prospective
lawyer the freedom to choose how he or she will prepare for the bar. The ABA and
state bar associations have virtually made themselves the gatekeepers for entry
into the legal profession.
It wasn't consumers, however, who were complaining
about low standards and incompetent lawyers. Rather, it was lawyers who were
carping about too much competition. They knew that if educational requirements
preparatory to the bar exam were raised, the ranks of lawyers would grow more
slowly and fees would rise. Basic economics and self-interest at work.
In only a few states, including Alabama, California and
Washington, can a person study on his or her own, or at a school not approved by
the ABA or state bar association, and then proceed to take the bar exam.
The ABA's accrediting body, the Council of the Section
of Legal Education, maintains standards that keep law school unnecessarily
costly. Among them:
• Law schools must have a three-year program of
instruction. No matter that most students think of the third year as a
prodigious waste of time, wherein they simply accumulate enough credits to
graduate.
• Teaching loads of faculty members are kept light.
Many law professors spend only four hours per week instructing students, thus
driving up manpower costs.
• Law schools must have expensive trappings. The ABA
rule says that the facilities must not have "a negative and material
effect" on students' education. That vagueness gives the ABA great leverage
to demand expensive building improvements.
You might ask: Don't we need three years (or even more)
of legal study for lawyers, given the great volume and complexity of law we now
have?
No. The truth is that very little of what lawyers need
to know is learned in law school. Every field of law is so vast that the most
any student can do is scratch the surface. Virtually everything a practicing
attorney needs to know he or she learns after taking a job. Often lawyers wind
up practicing in a field they barely studied in school, and their competence
doesn't suffer one bit.
If we were really concerned about making legal services
more affordable and enabling more minorities to have a shot at entering the
profession, we would turn back the clock to the days before legal education was
controlled by the lawyers' union.
George C. Leef is Director of the Pope Center
For Higher Education Policy, Raleigh, N.C.
