Innovation and the Law: Is the ABA the problem?

AmLaw Daily, in an article by Susan Beck, writes about a recent conference on innovation and the law.  Here is an excerpt from that article, the third in a series of three:

Several professors complained that the American Bar Association–and its outdated accreditation standards–is the main bulwark against innovation.

“The ABA is stifling law schools and preventing needed change,” says Northwestern dean Van Zandt. “Their regulation forces most of us to build an Acura instead of a Corolla, and that’s a real harm to society.” Van Zandt cited ABA rules requiring that a high percentage of a school’s faculty be full-time and tenured, rules limiting online courses, and burdensome and expensive requirements for law school libraries…

Benjamin Barton, an associate professor at the University of Tennessee College of Law, contrasted law schools with business schools.

"Business schools are massively more innovative because no one has to go to business school," he says. "They’re more interested in showing that they’re giving you something of value." In addition, he says, business school professors are much more attuned to the real world. "At a business school, corporate executives pay $10,000 a week to talk to a professor. Law firm leaders would never go to a law school for advice."

Fred Bartlit, the founder of litigation boutique Bartlit Beck Herman Palenchar & Scott, argues that it should be much easier and cheaper to become a lawyer.

"Law is not a hard thing to learn," he insists, while proposing that electronic law schools could serve the purpose. Their graduates might not get hired by Cravath, Swaine & Moore, but they would fill a need for reasonably priced lawyers who can serve people and businesses that don’t have lots of money. Says Bartlit: “There are too few lawyers for the lower end of market.” ….

The most radical proposal of the conference came from George Sheppard, a professor at the Emory University School of Law.

"I think we should eliminate the bar exam and the requirement that lawyers graduate from accredited law schools," he says. Before the Great Depression, there were no bar exams and lawyers didn’t need a law degree, he notes. (One reason the ABA began accrediting law schools, and states began requiring a degree from these schools, was to try to slow the influx of mostly Jewish lawyers who were attending newly formed night law schools, Sheppard says.)

"I think the system before the Depression was better," he says. The current regulatory regime imposes an expensive artificial barrier to enter the profession that makes legal services too expensive for most people…

Economist Preston McAfee, from the California Institute of Technology, questioned the purpose of these barriers to entering the profession. "Who are we protecting?," he asks. "The little guy can’t afford legal services. We should get rid of the bar and just require people to post bond."

Gillian Hadfield, a professor at the University of Southern California who organized the conference, has argued that the tight regulation of the profession by bar associations and courts has long impeded innovation. In an article published last April in the Stanford Law Review, Hadfield made the case that the legal system would be greatly improved by opening it up to more competition, including from nonlawyers who have ideas for improving the delivery of legal services.


Categorized in: