How can it possibly be that in 2007, bar licensing authorities persist in hurting business and hurting the public by not requiring lawyers to know essentially anything about federal statutory law? Here is a list of subjects about which one basically needs to know nothing in order to practice law in almost every United States jurisdiction: (1) administrative law; (2) antitrust; (3) civil rights law (1983, ADA, etc.), (4) environmental law (Clean Air, Clear Water, Endangered Species, CERCLA, OSHA, etc.); (5) Health Law (ERISA, HIPAA, COBRA, Medicare, Medicaid); (6) immigration law; (7) intellectual property law (copyright, patents, trademarks); (8) labor law (NLRA); (9) maritime law. Some states require virtually no knowledge of tax or bankruptcy.
And I can hear the excuses coming. (A) These are things lawyers will pick up in practice. (B) We can’t require students emerging from law school to know everything. (C) Once we open the Pandora’s Box there’s no non-arbitrary way to select from amongst the massive set of federal statutes. (D) Statutory law changes too frequently to make it a sensible subject of bar examinations designed for lifetime entry into the profession. (E) Imposing more barriers to entry of the legal profession would raise the cost of legal services or somehow reduce already-low diversity in the profession.
I’m sorry, but I just don’t buy any of it. If we’re going to use a licensure system as opposed to a certification system, we ought be licensing on the basis of relevant criteria. The current system of emphasizing the minutiae of contingent remainders, hearsay exceptions or secured creditors claims to proceeds, fascinating though these topics may indeed be, distorts the interaction amongst law schools and their students in the production of a curriculum. It ends up disabling lawyers in an embarrassing way from helping a large segments of the population and of businesses with contemporary problems. The fact that law schools are now explicitly and visibly rated on bar passage rates amplifies the curricular distortion.
This is a serious cost. Most of the graduates of my law school and of most others would have to go up a steep learning curve to help a client with the refusal of an employer welfare benefit plan to authorize medical care, help a client who wants to set up a web site that incorporates external material, give tax advice to a client wanting to name their estate as the beneficiary of a life insurance policy, advise a business wishing to purchase real estate in an area with toxic waste, handle the review of an administrative decision, help a 60 year old who says they’ve been fired because of their age, advise a business seeking to merge with a competitor, address the rights of a nine-year old placed in prison because of his parents' immigration violations. Worse yet, unless they received education outside of law school, some lawyers wouldn’t even know there were federal statutes and regulations that might address most of the above matters and so wouldn’t even start the ascent.
To be sure, some lawyers will pick this stuff up in practice and some of these areas do require specialization in order to achieve mastery. But I would bet a large sum of money on the proposition that more clients encounter problems with their employee benefit plans than with the rule against perpetuities and yet we don’t create dependency on firm culture with respect to the latter topics in order to practice effectively. To be sure, the skills students learn in law school should make their ascent of any of these topics mildly easier than if they’d had no formal legal training at all, but the substitution of some of the currently ignored federal and largely statutory areas for some of the esoteric common law topics now tested would only broaden the skill base of students by exposing them to the complex legal codes that are now pervasive. Yes, we might have to pick a subset of federal statutes and perhaps arbitrarily label them as more important than others, but surely the resulting irrationality would be less than the current system. And a few survey courses in law school designed to cover broad areas, thought they might [gasp] require sacrifice of the sainted Socratic Method in favor of tedious lecture or other more directive pedagogy, would at least alert students to a broader spectrum of the set of rules that potentially address their clients’ problems. Moreover, while setting different standards might create some transitional issues as law schools and students reached a new curricular equilibrium, in the long run it would increase entry into the profession and improve professional mobility by permitting licensure standards to reflect the extent of federally created homogeneity that now hangs over much of the practice of law throughout the United States. And, with respect to the mutability of statutory law, yes, it’s true, but does anyone in 2007 think that IP or environmental law is a fad? The half life of a lot of these statutes is likely to be a pretty long time.
So, that’s another rant on the subject. When I made a similar (though admittedly briefer) comment at a conference on reform of the bar exam, a former president of the AALS courteously described it as “the worst idea he’d ever heard.” The silver lining of this reception, I suppose, is that any commentary subsequently received will have to reflect a more favorable view.
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