Jim Chen is right. Contrary to the mythical image repeated in the past two decades—exemplified by Anthony Kronman’s The Lost Lawyer and Sol Linowitz’s The Betrayed Profession—the American legal profession has never had a golden age. As preeminent scholar of the legal profession Marc Galanter wryly remarked, “We are surely living in the literary Golden Age of nostalgia for the Golden Age of lawyering.”
What was true several generations ago, but is now deteriorating at a rapid rate, is that our professional guild once held a strong monopoly on the delivery of legal services. As Jim points out, this monopoly is losing its grip. The corporate legal market is relying more heavily on out-sourcing, e-discovery, and paralegals. A substantial chunk of legal services for individuals now is handled by self-taught storefront operations that help people fill out immigration forms, file for divorces, and manage other routine affairs, and online legal service providers like LegalZoom allow more and more people to take care of legal matters themselves. The Supreme Court of Washington State recently authorized licensed “legal technicians” to advise and assist people in filling out legal forms and pleadings.
The sale of my co-op in New York City and purchase of a home in St. Louis provided me with a vivid demonstration of the dispensability of lawyers. The closing in New York was held in a lawyer’s office with five lawyers present—my lawyer, the co-op lawyer, the lawyer for the bank that held my mortgage, the buyer’s lawyer, and the lawyer for buyer’s bank. The lawyers insured that every document was signed in the correct place by the appropriate person, and each received a check for their services at the end (from me or the buyer). When I bought a house in St. Louis, in contrast, the seller and I signed the bank-prepared documents at the office of the title company in the presence of a clerk who made sure that we signed on the correct lines. No lawyers were present.
The quicker and far cheaper transaction in St. Louis portends hard times ahead for the legal profession. A great deal of lawyer work is standardized in form-based transactions that can be handled capably at lower cost by people who do not have extensive legal training. This reality will put growing pressure on the lawyer monopoly.
This is not just about lawyers or America. In Death of the Guilds: Professions, States, and the Advance of Capitalism, Elliot Krause convincingly shows that doctors, lawyers, engineers and professors across the Western world have suffered a loss of autonomy and inroads into their guild protected work. Paralegals who fill out and file legal documents are much like nurse practitioners who see patients, write prescriptions for painkillers or antibiotics, and administer shots.
So I wholly agree with the thrust of Jim’s essay. The cost of legal education has reached astronomical heights: tuition and expenses for a law degree total $200,000 at a number of schools. The average law school debt of graduates nationwide exceeds $100,000. Law schools produce a substantial oversupply of graduates per available legal jobs—only 55% of the class of 2011 had obtained permanent, full-time lawyer jobs within nine months of graduation—which suppresses lawyer wages outside of the corporate legal sector. And legal work is devolving away from the profession to be fulfilled in lower cost ways. Creative destruction often sets in when the economics don’t work, as Jim suggests, and the price of entry to the legal profession today far exceeds the economic return on a law degree for many students. Something has to give.
I differ with Jim only on one point—his identification of law professors as a branch of the legal profession. “The legal profession, and most of all the educational branch of the profession,” Jim writes, “owes society a far more practical response than painful expressions of longing.” “Lawyers and their teachers must learn that theirs is no longer a professional guild, but a competitive trade.”
Jim is correct that the practice of law is a trade and we need to make practical adjustments that acknowledge this reality. But law professors are not in the same guild as lawyers. We are members of the academic guild. Many law professors have quite limited experience as lawyers; many law professors in recent years have PhDs in addition to JDs, and dozens of law professors have PhDs but no JD and no exposure to the practice of law. Clinical professors aside, what law professors do is teach and produce scholarship, and we do so with all the perks and protections enjoyed by university academics—no boss, no clients, lots of free time, and the ability to take up whatever task or topic we desire. Above all else, we enjoy lifetime job security conferred by tenure. Members of the legal guild do not have it so good.
There are two answers to the question “What is the purpose of American legal education?” Many legal academics will say that our primary purpose is to produce knowledge about law and convey this knowledge to our students and society at large. That answer makes consummate sense from the standpoint of the academic guild. Most students and lawyers will say, however, that the purpose of legal education is to train competent and ethical lawyers. This fundamental divide took root over a century ago, when legal training shifted away from apprenticeships in lawyer’s offices to a university setting taught by learned professors.
A major factor that has contributed to the high cost of a law degree is precisely that scholarly law professors have pursued their guild interests at the expense of the interests of lawyers. And although Jim correctly identifies the breakdown of the lawyer guild, what he says does not apply to the academic guild of law professors. Our guild remains robust and, at least until recently, largely insulated from market pressures.
We are in this fortunate position because we adroitly straddle the intersection of the two guilds, invoking one side or the other when it serves our interests. We have argued, with great success, that we should be paid more than other university professors because we could make more money as lawyers. And we have used the ABA accrediting process to insure that the bulk of law professors enjoy tenure protection and have ample free time for academic research, which we justify in the name of producing high quality lawyers.
What the future for legal education holds is impossible to know. We probably will muddle along as long as we can. What should happen, I argue in my book Failing Law Schools, is produce greater differentiation among law schools. We must create law schools that focus on training lawyers at an affordable cost, law schools staffed by experienced lawyers and professors who identify themselves as members of the legal profession more so than as academics. Law schools that style themselves as research institutions staffed by scholarly professors, like Harvard and Yale, can continue to function along existing lines, as long as they are able to attract a sufficient number of students willing to pay the increased price that goes with the production of scholarship. With a range of available options, students will be able to choose the type of legal education they desire at a price they can afford.
For such differentiation to come about, the ABA accreditation standards must be amended to eliminate the requirements that impose the academic model on all law schools. The culture within legal academia must also change, with more law professors adopting the view that we are indeed members of the legal guild and that our primary duty is to train competent lawyers at a reasonable cost.
Be warned: the status quo is too good for the legal academic guild to relinquish without a fight.