Eliminate the Bar Exam for Lawyers

The disadvantaged pay the price for an elitist legal system 

By Clifford Winston.

"The legal profession regulates itself—which explains how lawyers get away with practices that pad their own earnings and block nonlawyers from selling competing services at lower prices.

Congress may soon strengthen the antitrust enforcement powers of the Biden administration’s Justice Department. The department should use those powers to eliminate the American Bar Association’s monopoly in determining what constitutes an acceptable legal education and state licensing requirements, which restrict the supply of lawyers.

Prospective lawyers generally graduate from an ABA-accredited three-year law school before taking a state bar examination to obtain a license to practice law. However, many people who are interested in and capable of providing legal services cannot afford the high tuition and opportunity cost of not working for three years and paying to obtain a law degree.

Limits on the supply of lawyers are reflected in prices. A simple contract can run $1,500, which most people cannot afford. One study by the National Center for State Courts found that 75% of civil matters in major urban areas had at least one self-represented party, and these parties are less likely to prevail in court without proper legal help. Others who can’t afford legal assistance end up stuck in horrific circumstances that ought to be criminal matters, such as domestic violence.

Eliminating both the ABA’s monopoly control of legal education and states’ licensing requirement would allow alternative legal education programs to flourish, including vocational and online courses that could be completed in less than a year and college programs that offer a bachelor’s degree in law. Graduates of those programs could expand the availability of effective, low-cost civil legal services. Three-year law schools would be forced by the new competition to reduce tuition and the time to graduate. More J.D.s would be free to pursue a career in public-interest law if they were less encumbered by law school debt.

My new Brookings book with David Burk and Jia Yan takes an economics look at the legal profession and argues that educational requirements and state bar exams do little in practice to assure a minimum quality of legal services. Market forces have created institutions that accurately inform consumers about the quality, reputation and performance of a plethora of services.

Astute members of the profession are aware that the most advantaged members of society, such as Donald J. Trump and his 3,500-plus lawsuits, are the primary beneficiaries of the system. By eliminating ABA’s monopoly on legal education and licensing requirements, antitrust authorities could help the most disadvantaged members of society benefit from access to justice.

Mr. Winston is a senior fellow at the Brookings Institution and a coauthor of “Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform.”"