Legal monopoly: law schools are the beneficiary of the regulatory state, and they return the favor - Back to School

National Review, Sept 30, 1996 by John O. McGinnis

Law schools are the beneficiary of the regulatory state, and they return the favor.

THE structure of legal education today serves three principal purposes besides imparting legal knowledge: it unduly raises the cost of legal services, inflates the income of law professors, and supports the advocacy of the left-liberal agenda. Law schools are able to perform these socially deleterious functions largely because they themselves are the beneficiary of government regulation -- the usual state requirement that students attend three years of an accredited law school before being licensed as a lawyer. Deregulation of the market for legal education and legal services should therefore be a high priority for conservatives. As with the deregulation of airlines and other industries it will decrease prices, and it will have the added advantage of defunding a cadre of overpaid academics, many of whose left-wing causes depress not only prosperity but personal security.

At the beginning of this century few states required any amount of formal legal education for admission to the bar. Some the greatest Supreme Court Justices of this century, such as Benjamin Cardozo and Robert Jackson, did not graduate from law school. But as the bar became better organized it prevailed upon state judiciaries and legislatures to effectively require a law degree as the price of admission, thus reducing competition -- and increasing incomes --for subsequent generations of lawyers.

Over the years the bar has succeeded in adding an accreditation process, which has not even been run by government officials but by the lawyers' guild itself -- the American Bar Association. In fact, law professors have acted as an interest group within the general guild and have obtained huge influence on the ABA committee charged with formulating accreditation requirements.

Not surprisingly, these requirements have become a byzantine mixture of featherbedding and political correctness. For instance, the accreditation committee has prescribed faculty-to-student ratios and refused to count part-time practitioner-teachers as faculty, thus preventing serious competition from the huge pool of talented lawyers in private practice. Such cartel practices help law professors obtain higher salaries for teaching an average of six hours a week. The committee has also badgered schools to use ethnicity and gender as criteria for hiring law professors.

Such requirements are particularly deplorable in the light of the astonishing increase in the costs of legal education. From 1978 to 1988, while the consumer price index rose 83 per cent, the cost of legal education rose more than 200 per cent. As a result it is not unusual for students to graduate from law school with close to a hundred thousand dollars in debt.

THE predominantly liberal culture of law schools is deeply rooted in the New Deal's wholesale transformation of our constitutional republic. In the early republic law largely consisted of rules to resolve disputes between merchants and landowners, and the bar naturally aligned itself with their interests. After the New Deal, the Supreme Court converted the Constitution from a document designed to protect property rights into one designed to facilitate social democracy; the stuff of the law became largely centered on public regulation. Indeed, the lawyers' ideal is a government sufficiently powerful to entangle every area of human activity with intricate rules combined with due-process rights sufficiently boundless to allow every citizen to contest their application. Endless regulatory wrangles result in ever-higher income for lawyers.

This is a principal reason why the legal profession is now a bulwark of the Democratic Party and the welfare state, standing substantially to the left of corporate executives and entrepreneurs. And as apologists for the welfare state, law-school professors stand well to the left of the average lawyer.

The combination of law professors' ample leisure and overwhelming liberalism creates a ready reserve for the advocacy of every conceivable kind of left-wing legal agenda. For instance, in the last decade law-review articles supporting the Warren Court's expansive interpretation of habeas corpus or arguing for its further expansion have outnumbered by more than 10 to 1 articles arguing for returning the writ to its historical confines. Few, if any, scholars defend even social sanctions against homosexuality, while many write to support a constitutional right to homosexual activity; indeed, one of the leading law reviews devoted four hundred pages to an encomium to the homosexual movement entitled Queers, Sissies, Dykes, and Tomboys. In a symposium on the Clarence Thomas nomination in another law review, not one of the articles supported his confirmation.

Another aspect of law schools that promotes the liberal agenda is clinical education. Students understandably have wanted to gain practical experience rather than simply listen to professors expound theories. Nevertheless, the law schools have refused to excuse students for a semester or a year to work under the supervision of a lawyer; instead they have created in-house legal clinics. Needless to say, the clinics generally are structured around liberal causes -- crusades against the death penalty, extravagant environmental claims, and even, in one case, the construction of rights for animals. One searches in vain for a clinic that has tried to reclaim property expropriated by rent control.