A recent op-ed in the New York Times entitled “Are Law Schools and Bar Exams Necessary” by economist Clifford Winston suggests a number of ideas which are both negligent and flawed. Despite that I’m usually appreciative of the reports and studies issued by the Brookings Institution, Winston’s home institution, this opinion left lots to be desired.
But before I respond, I will issue a few disclaimers: there are many lawyers I cannot stand; there is much in legal education and the legal profession that needs improvement; there were indeed shortcomings in my own legal education at a top-ten law school. However, Mr. Winston’s suggestion that law schools and bar exams be done away with, must itself be done away with.
To begin, Mr. Winston claims that the legal industry operates a “monopoly,” which he confuses with licensure. Yet there is hardly a difference between a license to practice law, and, for example, a license to practice medicine. Like the medical profession, which requires complex and detailed training, the law is complex and detailed. Yet Mr. Winston sees it as a calamity that six-tenths of a percent (0.6%) of the nation’s attorneys were disbarred in 2009. Is he aware of how many medical malpractice complaints and suits there were? The Institute of Medicine of the National Academy of Sciences has estimated that as many as 98,000 hospital patients may be killed each year as a result of medical errors, in addition to the 1.5 million people harmed through errors in drug prescriptions. By extension, would Mr. Winston advocate shutting down medical schools and state Boards of Examiners too?
Comparing legal education and licensure to medical training and certification is no stretch. While health is indeed important, so is the law. You can lose your life, your liberty, and all of your money and property through legal proceedings. Complex litigation can involve millions of pages of documents, thousands of hours of labor, and numerous highly skilled counselors. Realistically, it seems unlikely that anyone would ever trust a multi-million or multi-billion dollar case to someone who has simply taken “online” courses as Mr. Winston suggests. If you were facing the death penalty would you want to be defended by a graduate of a reputable law school who received hands-on training working in a death penalty clinic or someone who had breezed through a few online classes?
Indeed in today’s world, as unappetizing to some as it might be, the law is more complex than ever. For example, the number of federal felonies has multiplied in just a few decades and Congress has attached death as a potential penalty for more than 50 new offenses. Does Mr. Winston seriously contend that less education and regulation is the answer in the face of ever-increasing criminalization? This isn’t to say that only law graduates should be able to sit for the bar. In fact, the ABA would do well to consider programs such as the California State Bar Law Office Study Program, which allows California residents to become California attorneys without graduating from college or law school if they meet basic pre-legal educational requirements; likewise the ABA might consider allowing paralegals with a certain number of years of experience to sit for the bar. Although these types of programs might represent a positive change for the legal profession, anything short of such proven experience would be a step backward.
Mr. Winston seems to make much of an ABA survey showing more than 125,000 complaints in 2009. Yet in state courts alone, some fifteen million lawsuits are filed. In the legal arena, which by definition yields winners and losers, some of the losers will inevitably complain. That is the nature of losing important things like your life, liberty or property. Although some complaints indeed relate to the competence of counsel, others have to do with gaming the legal system or simply being the last option for a defendant—a final arrow in the loser’s quiver. Taken another way, how many guilty criminal defendants file appeals? As any public defender, prosecutor and assistant U.S. attorney knows, a significant number. More critically, however, Mr. Winston fails to say how many of the complaints were unfounded, and worse, fails to acknowledge the difference between complaints about ethical violations and complaints about malpractice. Hence this figure is specious for his argument.
The more relevant question is how many complaints will there be after we do away with law school and the bar? If 125,000 complaints out of millions of cases is a shocker, wait until Mr. Winston’s plan is put into effect. Yet this plan comes from one who, according to the Brookings Institution, does not hold a law degree, is unlicensed, and has never litigated a case. In contrast, I have worked in the music publishing business for nearly a decade in addition to working for an entertainment litigator in Los Angeles, with two album credits as Executive Music Producer to my name. Nevertheless, there are some cases that I would not touch—simply because the waters of copyright law can get deep very quickly. One of the first steps any lawyer takes when looking at a case is whether he or she is competent to take the case. These are heavy facts that Mr. Winston takes very lightly.
Finally, it is worth mentioning that at the end of my law school career, I really wished law school were longer. I wished I had at least another year to study more administrative law, trial advocacy, and criminal investigation, but three years goes by quickly, and even though law school helps develop critical thinking and fosters an attitude of ongoing learning, more of it would have been nice. Hence rather than abolish law school, it may be that the exact opposite is necessary—perhaps making the J.D. a four year degree like medical school, with comparable skills training is in order. Although the ABA has recommended development of professional skills, present training hardly compares to the typical rotations of medical school. Yet if experience counts for anything, our complicated world requires more legal training, not less; Mr. Winston’s vision of law school, however, leads to a downward spiral with quality service to the public taking the first plunge.