American free traders should recognize that it is not enough to win the intellectual argument. They must also mobilize free trade sentiment.
Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers. Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well. California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.
First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone. Some students would benefit more from the additional course work crowded out by experiential learning. For instance, those interested in corporate and commercial law may get more from exhausting the business law curriculum than from taking available experiential learning in areas not directly relevant to their careers. Students are adults and can make such decisions for themselves.
Moreover, the experiential learning requirement will create a dilemma for law schools. Clinical education is expensive as it is necessarily taught in small classes with instructors guiding students in intensive writing and projects that reflect the experience of law. Insofar as clinics are expanded, they will add to the cost of going to law schools. Insofar as the experiential leaning component is outsourced to practitioners, there will be monitoring and quality control issues. While California’s proposal permits experiential learning unconnected to law school, the additional time required for such outside learning will create intense pressure for law schools to make it available to all students.
Second, this regulation has ideological implications. Not all law school clinics have missions that can be characterized as ideological, but quite a few do, and essentially all of these clinics serve left-liberal causes. Thus, given the universe of clinics in law schools, the experiential learning requirement will provide more resources and free labor to the left-liberal legal agenda.
The requirement of 50 hours of pro bono time effectively levies an additional tax on becoming a lawyer, precisely at the time when law schools are having trouble attracting students. Its protectionist nature is clear, because it would apply only to those not already members of the bar. It is not being imposed on practicing lawyers, even though they would clearly be better at providing pro bono services than neophytes.
The better way to serve the public, including those now underserved, is to deregulate law schools, permitting them to become cheaper, more accessible and more useful to prospective lawyers facing very different trajectories within our variegated legal profession. California’s proposal goes in exactly the wrong direction, adding costs, imposing uniformity, and erecting barriers to entry.