Hiatus and Reassessment

Recently, I hit 200 posts on this site, although I think that might include some posts that I started but never posted or deleted. In any event, it's mid-summer and I think it's a good time for me to take an Internet vacation and go on indefinite hiatus. Cooley aside, news is drier lately (expected given the time period) and I have a variety of personal projects that should get attention.

I have no plans of closing up shop and hope to actually get back to my anti-USNWR proprietary law school rating system when I return. It's been on the neglected back shelf for too long.

I also want to briefly reassess what this blog is and where it's going. When I originally started it, I viewed the space as a positive one, where serious reform and change would be discussed instead of merely serving as a whine outlet (an unfair characterization of many of the "scamblogs"). Obviously, it's far more interesting to write about where the action is at, which has been almost exclusively in law school "scam" exposure over the last eight months.

In the interests of meeting the blog's original intended purpose, I'd like to state my beliefs and where I think we're headed:

The fundamental problem with the legal education system is that it has the barriers of entry and membership requirements accompanying a profession without any of the subsequent marketplace protections.

That's it in one sentence. If legal representation were an ordinary business, like owning a pet shop or running a restaurant, any licensed party could open up a law office and no one would have a system at which to direct their anger if the business went under. Restaurants fail all the time, and yet we never hear of the "restaurant starting scam."

Law is differently precisely because there are bar associations that mandate relatively stringent requirements to join the club, including an investment in time and capital before even getting the chance to sit for the licensing exam. In the majority of states, even those who could pass the licensing exam without law school must attend for 85+ hours under the care of a full-time faculty with a full-blown library and blah blah blah.

Ostensibly, we do this to promote professionalism and to further normative values of justice and democracy and ethics. It's part consumer protection, but the lawyer faces much greater scrutiny than the bar & grill owner or the truck driver. In theory, those barriers exist to guarantee that people seeking legal representation will have someone who upholds high standards of ethics and professionalism, who promotes the prestige of the court, etc.

That extra inculcation costs time and money, which in most professions should be compensated by broader protections on the output side, as is the case with many medical professionals. And yet, the accrediting agencies and state bars have refused to maintain any type of protectionism, citing antitrust concerns.

If we're doing away with the economic aspect of professionalism on the output side as lower-ranked schools open up night programs and boast about how law should be accessible to everyone, we need to do away with the economic aspect of professionalism on the input side as well. Part of the implied benefit of a professional degree is a feeling of exclusivity. If that's gone, it should be reflected in a lowered price. The ABA should do away with its ridiculous criteria that give schools an excuse to raise costs. Law schools would become as common as trade schools and prices would drop to a few thousand a year. Anyone who took a glorified BarBri course could become a lawyer and set up shop; in that case, misallocations would be less significant as the individuals would have far less debt if they entered a bad field.

That's option one: to make it a more pure free market and rid the system of costly but profitable barriers that saddle students with massive debts if the market is oversaturated.

Option two is to restore professionalism and all its benefits to the output side. In this case, the accrediting agencies would actively try to fix the oversupply of lawyers, not out of anticompetitive concerns, but out of respect for the normative values underlying law's professionalism. Because we would want officers of the court and personal representatives to lead respectful, content lives in the furtherance of democratic principles (yeah, yeah, I know - try to read it without sarcasm), we would ensure that only the best candidates get in and that their investment in developing their career won't be undercut by some fly-by-night program shooting out lawyers like a factory.

In this model, the accrediting agency would limit enrollment and/or the distribution of federally-backed loans to serve as a watchdog over the profession. Sounds mildly socialist, but it's worked comparatively well in other fields. Going to law school would again be a prestigious, exclusive thing, and the public could rest assured that even bottom-half graduates of 4th-tier toilets would be competent to handle their business. In this model, even taking away bankruptcy rights makes sense.

The problem in legal education, like other areas (see, e.g., health insurance, primary education), is that we've mixed incompatible principles to create a monster. On one hand, many of the profession's elite (the ABA, BigLaw, etc.) demand that the legal profession be prestigious and exclusive (for the latter, it's a marketing ploy), and the existing law schools obviously have a vested interest in keeping the expensive, wasteful three-year study requirements. On the other hand, the ABA is concerned about antitrust principles while many of the lower-tier schools bark on about democracy, opportunity, giving everyone everywhere an easy path to a legal education, etc., again as a marketing ploy.

Thus, the system is pulled in two different normative directions by business interests while a neutered ABA lacks the power or the will to choose a side.

The good news - and why, contrary to make allegations made against me, there's room for optimism - is that this system is completely unsustainable, like a building that's been constructed from two separate foundations and held together by duct tape. At some point, something will give. My honest guess is that the barriers to entry will vanish, the ABA will cease to exist in its present form, and law school will become a radically different experience with a radically reduced cost.

This may seem like a far-flung pipedream right now, but the world is dynamic. The current legal education system didn't get this way until the 80s, by my reading. It can change, and it will. What change means is uncertain and can take many shapes, but I have little doubt it will happen for the better of, well, everyone.

'Til next time, kids.