Just as I wrote earlier about how government regulation strangles medicine, government regulation also strangles the legal profession by constructing high and arbitrary barriers to entry, mandating foolish education methods, and artificially restricting supply for the benefit of the existing suppliers.
The recent arrest of Anderson Kill & Olick paralegal Brian Valery for practicing law without a license raises a number of questions about how the ersatz Fordham graduate could have gotten away with representing corporate clients in complex litigation--without ever having gone to law school. The more salient question, however, is: Would it have mattered if he had?
Legal education has been taking a beating recently. This month the Carnegie Foundation for the Advancement of Teaching issued a report criticizing the Socratic case method that dominates law-school teaching. According to the report, it does little to prepare lawyers to work with real clients or to resolve morally complex issues. Several months ago Harvard Law School announced a reform of its first-year curriculum to require classes in "problem solving," among other things. There appears to be an emerging consensus that although law schools may teach students how to "think like a lawyer," they don't really teach them how to be a lawyer.
The article focuses mostly on the shortcomings of law schools, but remember that law schools have to teach students to pass the Bar Exams, which are given authority by the various state governments. This accreditation system prevents alternative legal education methods from competing in the marketplace and dooms us to legal mediocrity.
In the good old days, of course, lawyers didn't think they could learn the law through a series of hypotheticals. Instead, like most of the Founding Fathers, they apprenticed themselves to practitioners and learned the skills they needed by doing. The case method was invented in the late 1800s by Christopher Columbus Langdell, the dean of Harvard Law School. (Harvard Law wasn't even founded until 1817.) Formal licensing requirements followed, and soon the state bars imposed exams upon the newly graduated that reinforced the notion that being a lawyer meant memorizing definitions and rules. Along the way, few bothered to ask if clients were actually well-served by a lawyer who knew the difference between assault and battery but couldn't negotiate a plea bargain for someone who had committed either. ...
Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.
Government accreditation and licensing schemes try to guarantee that consumers aren't tricked by unqualified lawyers (and doctors, etc.), but because the schemes aren't subject to competitive forces it quickly becomes apparent that they aren't the best possible solutions.
Consider software engineers: there are plenty of great engineers who learned their trade by doing, many of whom do not have a college degree. Applicants without diplomas face a higher hurdle with most employers than do college graduates, and it doesn't require government licensing to ensure that unqualified engineers are kept out. There are plenty of engineers with college degrees who aren't good for anything. Market forces and private licensing and accreditation can handle the situation more efficiently and nimbly than can the blunt hammer of government.