Given the difficulty of administering the July bar exam to California law school graduates in the midst of the coronavirus crisis, the Los Angeles Times is advocating that the state let new law graduates practice law without passing the state bar exam. In an editorial in today’s issue, the Times is recommending that the state give law school graduates “provisional licenses” that will enable them to practice law until they pass the bar exam in October or whenever it is safe to conduct one.
What? Is the Times’s really advocating that the state let incompetent and unethical lawyers represent the public?
Shocking! What is the world coming to? After all, isn’t that what licensure is supposed to do — weed out the incompetent and unethical lawyers? Well, I’ve got one question to licensure advocates: How is that working out for you? Because the way I see it, despite the rigorous bar exam in California that has long prevented many law school graduates from practicing law, there are still plenty of incompetent and unethical lawyers representing people. And now the Times wants that number expanded — well, at least for several months.
I’ve got a better idea. Let’s abolish state licensure for lawyers entirely, along with that idiotic bar exam.
The fact is that lawyer licensure is nothing more than a protection racket, one designed to limit the number of lawyers in order to keep lawyer incomes higher than they otherwise would be. Licensure is akin to the guilds of the Middle Ages, where entry into certain trades was highly restricted in order to keep incomes of the guild members artificially high.
Licensure is just a way to use the coercive apparatus of the state as a way to reduce competition. In principle, it is akin to a monopoly.
Imagine, for example, that a state permits only one automobile dealer to sell cars within the state. Other car dealers are prohibited from competing. The licensed car dealer would have a monopoly over the sale of cars. It wouldn’t have to concern itself with competition. It could keep its prices artificially high given its monopoly position in the economy. It could also feel safer about mistreating customers.
The principle works the same with a protected class of sellers. Let’s hypothesize that without licensure laws, there would be 30,000 lawyers practicing law in California. Let’s further hypothesize that licensure limits that number to 10,000. Those 10,000 practicing lawyers will be able to charge higher prices than they would be if there were 30,000 practicing lawyers instead.
Thus, the purpose of that rigorous bar exam, which, as the Times points out, “determines whether students have wasted three years of their lives or, instead, will be licensed and begin their legal careers,” is to keep the number of lawyers practicing law in California lower than it otherwise would.
Lawyer licensure is also a way to keep poorer members of society from becoming lawyers. While California permits people to become lawyers by apprenticing with established, experienced lawyers, most states do not. That means that to become a lawyer, a person must attend a state-approved law school, which means graduating from a state-approved college. That takes a lot of money. And even with an apprenticeship program, there is still the problem of passing the bar exam. How many people want to take the risk of going through years of apprenticeship, only to find that they still can’t become lawyers because they didn’t pass the bar exam?
Of course, a protection racket is what licensure is all about in other trades, occupations, and professions, including doctors, nurses, and other healthcare providers, hair dressers, shoe-shine people, stock brokers, real estate agents, teachers, and many others. Everyone wants to protect himself from competition by having the state artificially limit the number of people working within his market.
Of course, one of the amusing aspects of occupational licensure is how so many advocates of this racket remained convinced that America has a “free-enterprise” system. They just can’t see that a free-enterprise system is one that is free of governmental interference, including interference through occupational licensure laws.
For more on licensure, see:
Medical Licensure by Milton Friedman
The Poison of Medicare, Medicaid, and Medical Licensure by Jacob G. Hornberger
Licensure: A Lawyer Protection Racket by Jacob G. Hornberger