Deregulation is Just Another Word for …

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Written by Hazel Weiser

Despite a stalled economy, sunk in part by decades of deregulation in banking and investment, the US Chamber of Commerce is spending fortunes on Capitol Hill in an anti-regulation campaign directed at sweeping away any government involvement in policing corporate wrongdoing, environmental standards, healthcare, financial and other regulatory protections.  So reports the October 31, 2011 The Nation in an article “The GOP’s Obsession with Deregulation” by Robert Weissman, president of Public Citizen and co-chair of the Coalition for Sensible Safeguards.

The Chamber’s tactic is using the stubbornly unmoving unemployment figures to claim that regulation, in any form, is really just another word for “job killers.”

The same deregulation rhetoric is surfacing once again as the comprehensive review of the ABA standards for approval of law schools moves into its final year.  The American Law Deans Association ALDA, an exclusive club of deans (now called ALDS, American Law Deans Society), set the tone at the beginning of the comprehensive review back in 2008: deregulate law schools so that we can cut costs and deliver better legal education.  Deregulation meant getting rid of tenure, input measures like library and required faculty offices, and moving to solely an output measurement: bar pass rates and employment.

The claim that ABA regulation was the cause of the stupendous rise in tuition rates was debunked by a U.S. Government Accountability Office study, issued in October 2009: Higher Education: Issues Related to Law School Cost and Access .  The GAO was given three questions to research as part of the Higher Education Act: 1- compared with other professional schools, how do law schools compare on tuition and minority enrollment; 2-what factors, including accreditation, may affect cost of law school; and 3-what factors, including accreditation, affect minority access?  As reported, all professional school tuition costs are rising, including law school tuition, although minority enrollments in other professions, including medicine and engineering, especially of African Americans, are better than they are in law.  Just this week, the Association of American Medical Colleges  reported  an uptick in the number of applications to medical schools, including a 4.8% increase in the number of African American and a 5.8% increase in the number of Hispanic applicants.  We are still waiting to see what happens to minority enrollments at law schools for the Fall 2011, in light of the poor after-graduation job market.

What the GAO found was that competition among law schools for rankings in the U.S. News & World Report survey, and not ABA regulation, was the cause of the increase in the cost of legal education.  In addition to clinical education and student services, law school deans cited cost increases resulting from having to offer a larger diversity of elective subjects and perhaps offer higher salaries to attract and keep star faculty.  What wasn’t mentioned was the cost of marketing law schools and the increase in the administrative staffs, such as development and marketing.  Accreditation costs were only cited by a small number of law schools, and dismissed by the GAO as a real factor.  Lastly, accreditation standards were not implicated in the lack of diversity within law school enrollees, but lower academic qualifications and a smaller pool were named as contributing factors.  I would add to that the U.S. News & World Report survey, which pressures mid and lower tier law schools to ignore minority candidates with lower LSAT and GPA scores in favor of buying higher credentialed applicants with “merit” scholarships.  But I ranted about that already in my August 17, 2011 post “In Defense of a Legal Education.”

The call for deregulation of law schools and the legal profession as framed by Brookings Institution’s Clifford Winston in the October 24 The New York Times op ed “Are Law Schools and Bar Exams Necessary?,” mimics the arguments of the US Chamber of Commerce.  Like most narratives where one begins the story slants the discourse.  Winton chooses to start the story with jobs, which is what worries me.

Instead let’s start the story with the origins of legal education.  According to Paul Carrington, in his influential The Revolutionary Idea of a University Legal Education, 31 W&M L.Rev. 527 (1990), Thomas Jefferson saw legal training as part of the development of the “citizen lawyer,” someone who saw his responsibility grounded in acting for the public good, not just to further self-interest.  The needs of a young republic, according to Jefferson, required that there be a professional class of republicans capable of self-governing and moving the nation along democratically.  In Mark L. Jones’ Fundamental Dimensions of Law and Legal Education: An Historical Framework—A History of U.S. Legal Education Phase I: From the Foundation of the Republic Until the 1860s, 39 J. Marshall L. Rev. 1041 (2006), he traces the movement from law as a guild, when all thirteen original states required some form of apprenticeship, ranging from one to five years, before one could practice law to the time of Jackson, when education declined along with the standards for entering the bar.  By 1840, only 11 out of 30 jurisdictions required any apprenticeship prior to becoming a lawyer.  By 1860, training for lawyers had fallen deeply, with only 9 out of 39 jurisdictions requiring any apprenticeship, and bar exams were usually oral and quite “casual.”  After the Civil War, as the industrial revolution seriously took hold and the land grant colleges spread higher education to many more ordinary citizens, the need for an educated legal profession gr.  The business world and the United States as an economic empire became more complex so skilled lawyers were needed.  See, Daniel R. Hansen, Do We Need a Bar Examination?  A Critical Evaluation of the Justification for the Bar Examination and Proposed Alternatives, 45 Case W. Res. 1191 (1995).

Just as the nascent American Medical Association was trying to professionalize medicine, and wrest childbearing away from midwives, the seeds of what would become the American Bar Association was trying to professionalize the practice of law.  Two models developed: the university-based law school that Christopher Langdell established solidly at Harvard with an emphasis on the case book and Socratic method and the older, proprietary part time legal study that emphasized the practical tasks of everyday lawyering as developed by Theodore Dwight.  Most states conferred a diploma privilege, meaning that one did not have to take a bar exam, if he or she had a diploma from a law school.  It was not until 1921 that the ABA began to approve law schools; there were now approved and unapproved law schools, as well as the remaining opportunity to apprentice without attending school.  By 1920, however, the written bar exam had become well established at the same time that the ABA expressed consternation at the idea of a diploma privilege.  Only a written bar exam would provide some professional standards.  Yet in 1922, no state required graduation from an ABA approved law school, or any law school, to sit for the bar exam. Law School: Legal Education in America From the 1850s to the 1980s by Robert Stevens. (1987) (A few states today permit one to sit for the bar exam with only a period of apprenticeship and not a law school diploma as a prerequisite.)  Certainly there is a history of anti-competitiveness and nativism in the bowels of the ABA and its accreditation system, but that doesn’t legitimize deregulating legal education or the practice of law.

Rather than deregulate the legal profession, which is notoriously bad at self-policing, the best way to get more jobs for these unemployed recent graduates is to up regulation, not do away with it.  Another op ed piece, “It’s Consumer Spending, Stupid” dated October 25, 2011, by James Livingston, a professor of history at Rutgers, puts it perfectly: “…private investment — that is, using business profits to increase productivity and output — doesn’t actually drive economic growth.  Consumer debt and government spending do.  Private investment isn’t even necessary to promote growth.”  Government spending means regulation as well as bridges and tunnels.  Let’s hire these young attorneys to enforce the laws of the land!