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Certifying, not Licensing, Lawyers

Recently, my frequent co-author John McGinnis, along with Russel Mangas, published an op ed in the Wall Street Journal arguing that there should be an undergraduate law degree that permits students, upon completion, to take the bar exam and become lawyers.  In this way, the high cost of law school tuition could be avoided:

States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.

I certainly agree that this would be a good idea.  But I would go further and eliminate the bar licensing requirement entirely.

Instead of licensing, the government could employ a certification system.  It could provide that only attorneys who satisfy the state’s designated requirements could be known as “certified attorneys.”  Other attorney could practice but could not represent themselves as certified attorneys.

Federal and state courts might or might not require that attorneys that appear before them be certified.  But even if they do require certification, that would still allow for many of the attorneys who work on the briefs and research for the attorneys not to be certified.

The advantage of this system is that it provides the public with information about the training of lawyers in an easily understood form.  But it prevents the government from imposing excessively strict requirements that serve to raise the cost of legal services and to establish a lawyer cartel.

Another important benefit of this certification system is that it would provide the government with an incentive to select desirable certification requirements.  If the government requires excessively strict requirements, then lawyers and the public will simply ignore it.  In that situation, meeting the certification requirements would be too expensive and therefore few attorneys would do so.  As a result, few people would insist on their attorney having the certification.  By contrast, if the government requires certification requirements in the range of what the public would desire – if the requirements are not too costly for the benefits provided – then it is much more likely that the attorneys will be willing to incur the effort to satisfy these requirements.  The benefits to those attorneys from the certification would be likely to exceed the costs of complying with the requirements.  Thus, the incentives of the government to pass relevant certification requirements – requirements that are not ignored but are complied with by many attorneys – would lead them to enact reasonable requirements.

Reader Discussion

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on May 25, 2012 at 23:26:25 pm

"Another important benefit of this certification system is that it would provide the government with an incentive to select desirable certification requirements

"Thus, the incentives of the government to pass relevant certification requirements – requirements that are not ignored but are complied with by many attorneys – would lead them to enact reasonable requirements."

Leaving aside this questionable reification of "governments" that are somehow entities responsive to "incentives," rather than mechanisms in which, through the representative systems are directed by the representation of interests; what does the emperical evidence indicate will determine how the "standards" and criteria for certifications come to be established; by plebiscite?

As against the interests that are now served by the present system, and were brought into existence by those interests as they coalesced over time, what are the countervailing interests, is commonality sufficient for coalescence to attain effective representation, or are the interests too differentiated?

Absent a Plague, we are unlikely to see a repeat of the Copy-writers of Common Law.

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Richard Schweitzer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.