Why Washington State Should Deregulate Law School

By Jeff E. Jared

The legal profession should be deregulated so that prospective lawyers can sit for the bar exam without having three years of law school. Everyone complains that lawyers are too expensive. If we flooded the market with more lawyers by letting more sit for the bar exam, the price for legal services would come down and access to lawyers would go up.

The Advent of Law Schools and Entry Requirements

Until about 1921, in nearly every state, there were three routes to becoming a lawyer. One could do self-study like Abe Lincoln did, or apprenticeship like Clarence Darrow (of Scopes monkey trial fame) did. The third path was a one or two year law school.

This all changed in 1921 when the American Bar Association (ABA) sought to professionalize legal education. With the explanation that consumers benefit from higher standards, the ABA convinced states to require three years of law school. The ABA also pushed for and obtained the passage of criminal law statutes barring the unauthorized practice of law. The ABA was like a guild trying to limit competition by raising the cost of becoming a lawyer and therefore confining the profession to the upper class.

Law school, and the bar exam itself, do not really establish high, professional standards more than they make becoming a lawyer expensive and restrict the labor pool. Both Abe Lincoln and Clarence Darrow would be criminals if they practiced law today with the educations they had.

Law school is good because it teaches you to read a case and be able to argue either side of an issue, and it gives you the philosophical underpinnings of the law. But it should not be the only method. The law is so complicated that much of it is learned on the job anyway.

The Cost of Law School Increases Legal Fees

Everyone complains about the high cost of lawyers. More attorneys via opening up law schools and bar exams is the solution. Requiring three years of law school only acts as what economists call a “barrier to entry.” Such barriers artificially restrict the number of lawyers who enter the labor pool, thus making legal advice more costly. This is just the law of supply and demand in the legal labor market.

Law school students graduate with huge debts because of their student loans. With an $85,000 average debt, young lawyers cannot go into public interest work or work in the non-profit sector because they can only afford to take the high-paying jobs with big firms.

Increased Competition is Good for Consumers

Requiring students to do three years of law school (and four years of college before that) at government-accredited schools is supposed to ensure high standards and skilled and educated lawyers for the benefit of legal consumers. But in reality, it only restricts entry into the field hurting consumers.

Consumers want competition and open labor entry in every field and for every good and service because it will lower the prices we pay when we buy it, thus raising our standard of living by freeing up money for other things.

Requiring three years from a state-sanctioned school (as well as a four-year college degree) does not protect consumers from incompetents and quacks, but protects current lawyers against new competitors. It is an inappropriate restriction and regulation of the labor market in legal services that works to the detriment of consumers, i.e., people who need lawyers. The argument that licensing and required schooling protect consumers and ensure high standards just isn’t accurate.

In the real world, deregulating the legal profession would mean that state bar associations would have to stop prosecuting real estate agents and freelance paralegals for unauthorized practice of law.

Licensing, bar exams, requiring expensive schooling and other regulations are the wrong approach to protecting consumers, whether it is protection from lawyers, doctors, accountants, realtors, or mechanics. We should let private accreditation and certification, civil consumer protection and fraud law, and general tort, contract and products liability law protect consumers and patients in a modern, decentralized civil legal system in a free market.

We already have a consumer protection act in Washington (RCW 19.86), and the law of professional malpractice and negligence as well as informed consent law can adequately protect consumers and patients from so-called “quacks.” The free market, in the shadow of civil liability, can protect consumers, plaintiffs and defendants better than state-run licensing and schooling schemes. Let’s open up Washington’s law schools and bar exams to more people.

Reducing Barriers to Entry

Washington State is legally fairly progressive in that it and about seven other states still allow apprenticeship students to sit for the bar exam. Apprenticeship is where, instead of law school, on-the-job learning and academic study are combined under a mentor attorney, monitored by the state. Washington’s program is generally referred to as “clerking to the Bar,” and the rules governing it are set forth in APR 6. Tests are required, but classroom attendance is not.

Washington is also progressive because in 1999, “reciprocity” with Oregon and Idaho was legalized, which ended local protectionism. This means that lawyers in Washington, Oregon and Idaho can practice in all three states without re-taking each state’s bar exam. Washington should go beyond just allowing apprenticeship and reciprocity with two states.

Four states (California, Massachusetts, Tennessee and Alabama) allow graduates of non-accredited law schools to sit for the bar exam. Washington should join these states. Washington should also allow for-profit law schools, and possibly allow two year law school programs as well.