Supreme Court Justice Neil Gorsuch, in recent remarks to the Tenth Circuit Bench and Bar Conference, provocatively asked: “Does it really require seven years of collegiate education to become a competent lawyer?”
The problem Gorsuch identifies stems from the fact that American higher education is averse to early specialization, whereas the bar is “over-professionalized.” The American pedagogical establishment has long been the chief proponent of the notion that education is not simply a means to material prosperity. America’s universities have done their utmost to advance the idea that, besides the skills necessary to make a living, education exists for cura personalis (the enrichment of one’s whole person). Just as pervasive as in undergraduate education, this ethos is present in law schools, too, where students must often study areas in which they do not intend to practice.
Given the dismal state of higher education (especially in the humanities), we should revisit the assumption that years spent in an academic milieu is necessarily an individual and social good.
Gorsuch also took aim at some some of the cartel-like practices of professional law associations, such as how they fight efforts to reduce the cost of legal services. “Every time LegalZoom wants to go to a new state they get sued for unauthorized practice of law,” he said, observing that “it’s never by a consumer; it’s always a lawyer.”
The American Bar Association (ABA) and jurisdiction-based bars have acted more like medieval guilds than unprejudiced arbiters of professional standards. The state has granted these organizations the exclusive right to decide the criteria for entering the legal profession. Bar associations have used this monopoly power to restrict the business of offering counsel to licensed attorneys, thereby raising the price of legal services. Rather than protecting the interests of the public, they have protected themselves at the expense of indigent individuals in need of legal assistance.
Bar associations’ anticompetitive practices manifest in law school. Beyond determining which schools receive accreditation, they have successfully made law-school attendance a prerequisite to bar admittance. Today, only California, Vermont, Virginia, and Washington allow one to forgo law school for a legal apprenticeship. This means that many young attorneys graduate with hundreds of thousands of dollars in student debt, impeding their capacity to work in relatively low-paying public-service positions, and compelling them to ratchet up the price of their counsel. I have witnessed this phenomenon as many of my peers have ditched their initial career aspirations, their professional raisons d’être, for more lucrative positions out of Maslowian necessity.
It doesn’t have to be this way. If one has acquired legal experience through an apprenticeship, one should be able to pursue a career in the law without attending law school.
Gorsuch is right. As it currently exists, legal education is in dire need of reform. This is why breaking down barriers to legal practice must be included in any broader conversation regarding occupational-licensing reform.