In my last two posts, I have talked about proposed changes to the regulation of law schools. In the first, I talked about the possibility of moving some of legal education to the undergraduate level. In the second, I talked about allowing students to take the bar exam after their second year of law school.
In this post, I want to address some of the practical impediments to achieving change in the system that regulates law schools. The law school regulation system has two basic parts. The ABA Section on Legal Education provides national-level accreditation standards. State bar regulators provide state-level admission standards that law school graduates have to meet to practice law. The two parts are typically linked together by state bar regulations that require graduation from an ABA accredited school to be admitted to practice.
It is impossible to achieve significant changes in legal education without making changes to this regulatory system. Any proposed change to the regulatory system, however, would face at least one tremendous obstacle – it is a change, and people - including law school regulators - don’t like change. The status quo therefore has a built-in advantage.
In some ways this aversion to change is perfectly appropriate – we don’t want to change just for change’s sake. There are often many proposed changes, and the proposals often conflict with each other. Many proposed changes are deeply flawed. We don’t want the process of change to be too easy. On the other hand, too much aversion to change would lock us into a status quo that is imperfect at best.
I think we could make some tangible progress towards a better system of regulation if the regulators of legal education made a shift in the burden of justifying a regulatory change. Currently, any regulatory change faces a heavy burden of justification. If there are any doubts about the proposed change, the status quo stays in place.
It would be better, I think, if regulators put the status quo to the same searching inquiry that is applied to proposed changes. Proposed changes are often rejected because of hypothetical harms that could result from their enactment. The status quo often results in concrete harms. A good analysis of the status quo against a proposed alternative would measure the advantages and disadvantages of each. Too often, the analysis never proceeds beyond the hypothetical negatives of the proposed alternative.
It makes sense to have the initial burden of persuasion on the proponents of change. If these proponents can show that the current system has substantial problems, then the burden should be shifted. Perhaps the new burden should not be on the status quo, but at a minimum the burden should no longer be against the change.
Of course, I’m not talking about formal burdens of proof and justification here. My point is that we should look as hard at the status quo as we do at proposed changes. If the status quo is flawed, we should not be hesitant to at least try changes.
Many regulatory changes could be made on a trial basis. Fear of the unknown is a related obstacle for changes in legal education. If we could try a proposed alternative on a trial basis, we could then have an informed basis about whether to keep, modify, or scratch the new regulatory approach.
The current system of bar examination timing is an example. I’ve argued that the current system has serious flaws, and that moving the exam to the second year summer would have a number of advantages. A state wanting to test the alternative method could try it for a few years. Arizona recently did just this in allowing students to take the bar exam during their third year of school. If it works, great. If it doesn’t, they can reconsider. Either way, they will have some actual experience to go on, and will not have let inertia prevent them from trying something new.