Monday, September 25, 2017

The law school monopoly myth (Michael Simkovic)

It is often assumed that the only way to become a lawyer is to attend an ABA-approved law school.  That is true in some states and, indeed, the ABA has at times expressed the view that it should be true in all states.  But it is not the case in large jurisdictions such as New York or California, nor is it the case in the majority of jurisdictions.  Claims that ABA-approved law school have a monopoly on entry into the legal profession are exaggerations.  Rather, the most popular—and probably most likely—way to become a lawyer is to graduate from an ABA-approved institution. 

In leading jurisdictions such as New York, California, and Virginia, an individual who wishes to become a lawyer may sit for the bar examination with between zero and 1 years of law school and between 3 and 4 years of apprenticeship and study under the supervision of a licensed attorney (this is also known as “law office study” or “reading for the bar”).  In California, graduates of non-ABA-approved law schools are eligible to sit for the bar examination.  This includes schools with extremely low-cost, technology-driven approaches to teaching, such as online and correspondence schools.

In fact, non-ABA law school graduates are eligible to sit for the bar examination in most jurisdictions (31 in total as of 2017) according to the National Conference of Bar Examiners.**  This includes extremely large and important jurisdictions such as California, Florida, New York, Texas and Washington D.C.  Graduates of online and correspondence law schools are eligible to sit for the bar examination in 4 jurisdictions.

Very few people choose the apprenticeship route, and only a minority opt for non-ABA law schools.  Among those who do, relatively few successfully complete their courses of study or pass the bar examination.  But those who do will have the same license to practice law as someone who graduates from an ABA-approved law school and successfully passes the bar examination.

Why then do so many prospective lawyers choose ABA-approved law schools?

The most likely explanation is that prospective lawyers choose ABA-approved law schools because those law schools provide a valuable and worthwhile service that supports a higher price point than other options.* 

Many employers value legal education.  That’s why they typically pay law school graduates tens of thousands of dollars more per year than they pay similar bachelor’s degree holders, even in occupations other than the practice of law.  When law school graduating class sizes increase, and a lower proportion of graduates practice law, graduates don’t typically see a noticeable decline in their earnings premium. 

In other words, the benefits of law school are versatile. Graduates of ABA-approved law schools also seem to be much more likely to complete their studies and pass the bar examination than students attending more lightly regulated and lower cost alternatives.

As in other markets, ABA-approved law schools aggressively compete with each other for students.  As in other markets, students face tradeoffs between cost and quality.  Gross tuition at ABA-approved law schools ranges from $9,000 to $65,000 dollars per year (not counting lower in-state tuition).  Because of scholarships, many students have the option of attending at least one ABA-approved law school for free.  But students routinely choose more expensive options precisely because they believe that there are differences in quality.

The labor market is telling us that law schools are doing many things well.  There may be opportunities to do things even better.

I encourage those advocating bold changes to legal education to carefully study law schools and jurisdictions that have already implemented approaches that are similar to their proposals.  With more than 200 law schools and more than 10,000 law professors in the United States, there is bound to be underappreciated variation and innovation.  Have those who believe that ABA-regulation renders legal education monolithically uniform and unchanging reviewed materials from tens of thousands of curricula before reaching this conclusion?  Shouldn’t advocates of innovation find and highlight examples of it?

Proposals that at first seem innovative may resemble things that have been tried before.  For example, proposals for paraprofessional programs to handle routine aspects of legal practice resemble programs to train paralegals, legal secretaries, court reporters, tax preparers, accountants, investigators, bankers, real estate agents, social workers, and compliance officers, all of whom already do work that overlaps with lawyers.  In some of these roles, graduates of traditional law schools may have advantages over graduates of slimmed-down occupation-specific training programs.

Proposals for online legal education may be similar to what Kaplan University’s Concord Law School has been doing for almost 20 years.  Concord’s lecturers have included well respected faculty who have taught at Harvard and NYU.  Concord had the financial backing of the Washington Post Company (and may be acquired by Purdue).

Nevertheless, student completion rates (11%) and bar passage rates (recently around 25% in California) remain below the range that the ABA finds acceptable.  Graduates of other distance learning institutions seem to perform worse on the bar exam than graduates of Concord.

Online education may improve with time or may be implemented better elsewhere.  The economies of scale, convenience and consistency it offers seem promising, particularly for large institutions that have highly specialized faculty and staff, extensive resources, and long time horizons for investment.  But for now, there remain serious concerns about student completion rates and knowledge retention, limited interaction, distracted learning and cheating, and limited opportunity to form friendships, mentoring relationships or community.

Reform proposals should not be adopted based on rhetoric and appeals to theory, but rather based on pilot programs that can be evaluated dispassionately and impartially with well-established statistical methods of causal inference.   These should be followed by replication studies and validation studies to avoid mistakes or over-generalizations based on specific experimental conditions.  The empirical labor economics literature is replete with studies of seemingly promising interventions and programs that ultimately proved ineffective. 


*It’s also possible that prospective law students are not aware of other options, but this seems unlikely—the apprenticeship option has been covered by the New York Times, Slate and Business Insider.  Moreover, the large proportion of law school graduates who have family members who are lawyers or attend colleges with pre-law advising programs are likely to be familiar with alternatives to ABA-approved law schools.

Some may argue that apprenticeships are hard to come by.  This is simply another way of saying that law school provides a valuable service.  Few lawyers may be willing to pay a trainee with no education beyond a college degree a living wage if the lawyer is obligated to devote substantial time and energy to train that individual for legal practice.  As a result, such training must be purchased, which is why law schools exist.  Many more lawyers are willing to pay to take on apprentices who have completed law school.

An ABA-approved law degree is more portable than other options because it qualifies an individual to sit for the bar examination in any jurisdiction in the United States, but it is unclear how important out-of-state mobility is for those who intend to practice in large jurisdictions like California or New York.


**UPDATE 9/25/2017:  Professor Gordon Hylton writes:  

"I believe the number of jurisdictions open to allowing a graduate of a non-ABA accredited law school to take the bar examination under some circumstances is 32, not 31. . . . In 22 of the 32 jurisdictions a graduate of a non-ABA accredited law school can only take the bar examination if he or she has previously been admitted to the bar in an American jurisdiction and has practiced law in that jurisdiction for a specified number of years, usually ranging between 3 and 10 years. . . . In four states . . . graduates of non-approved law schools have the right to petition either the state supreme court or the board of bar examiners for permission to take the bar examination.  If their law schools are deemed to be of ABA quality, permission may be granted, but there is no requirement that permission be given. . . . Realistically, your unaccredited graduates would be limited to starting their practices in California, Alabama, Massachusetts, and New Hampshire."

Those pursuing law office study would have additional options such as Virginia, New York, Vermont, or Washington.

Guest Blogger: Michael Simkovic, Legal Profession, Of Academic Interest, Professional Advice, Student Advice, Weblogs | Permalink