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Do we really need to protect people from trying to achieve their dreams?



Harvard Law School professor Noah Feldman has responded to the arguments made by Law School Transparency, the New York Times editorial board, and your faithful correspondent, that law schools shouldn’t be admitting students who, based on their entrance credentials, are at high risk for never passing a bar exam. His argument is that this position is paternalistic to the point of being infantilizing, and that adults should decide for themselves if they want to take the risk of purchasing an expensive credential that may not end up being worth much of anything:

This view assumes that it’s up to the law schools to make the threshold decision paternalistically, “saving” naive college graduates from pursuing the dream of becoming lawyers when there’s no guarantee that they’ll succeed. It treats standardized test scores as destiny and correlation-based studies as gospel. . .

[H]ow much should we trust prospective students to make their own decisions under market conditions?

Feldman points out that elite schools like HLS select their students in such a way as to practically guarantee that they’ll graduate from law school, while ensuring that almost all of them who take it will pass the bar. But shouldn’t there be schools that enroll students who are at some risk of failure?

[That low LSAT scores correlate with low bar passage rates] doesn’t mean that every student with a lower standardized test score will fail to pass the bar. To think otherwise is to deny individuals the capacity and responsibility to do well on the basis of work. A standardized test score, taken alone, shouldn’t determine your future.

That brings us to the crucial question in admissions: Who should decide whether you get to go to law school? It seems pretty clear to me that if you can do the work, the decision to take a risk on legal education should be yours.

You will build up debt, to be sure. But an investment in education isn’t like buying fast-depreciating consumer goods on a credit card. Education constitutes an investment in your own human capital. And in a free society, we typically believe that you should be empowered and enabled to make that investment in yourself.

Those who think law schools shouldn’t admit students with low test scores are reflecting, whether they know it or not, a culture of paternalism that verges on infantilization. Since when did college graduates pursuing the American dream of professional success come to be seen as an act of self-delusion? Do we really need to protect people from trying to achieve their dreams?

A few points:

(1) This sort of argument sounds plausible and even rather inspiring as long as the facts on the ground are being described from a rhetorical cruising altitude of 37,000 feet. The question isn’t whether every law school should be as restrictive in regard to its entrance criteria as HLS: it’s whether law schools, and most especially for-profit law schools, should be allowed to charge people $200,000, borrowed almost wholly from taxpayers, while they try to become lawyers, if those people have an X probability of ever passing the bar. Surely there is some point at which X is small enough that the answer ought to be “no?”

(2) In the characteristic fashion of legal academics, Feldman does what no competent lawyer would ever do: he simply ignores the rules under which law schools are actually required to operate. ABA-accredited law schools have something close to a complete monopoly on qualifying American students to sit for state bar exams (California is the major exception), and in order to be an ABA law school, you at least in theory have to abide by the organization’s rules of accreditation, which both forbid schools from admitting students who don’t appear capable of passing the bar, and threaten with de-accreditation schools that have insufficiently high bar passage rates. Now maybe Feldman thinks those requirements are a bad idea, but he ought to at least acknowledge their existence. This is especially true because . . .

(3) The “market conditions” to which Feldman refers are, as Bill Henderson just pointed out, completely dominated by federal educational loans, which are only available to students at schools that maintain ABA accreditation. Which brings us to the heart of the issue: Bar exams, ABA rules, and indeed law schools themselves are all designed as barriers to entry. This is especially true of law schools, which require people to invest three years and many hundreds of thousands of dollars in direct and opportunity costs after acquiring an undergraduate degree, before their graduates even have the right to try to take the bar exam. Now the public-regarding justification for these barriers is, not surprisingly, to protect the public from incompetent and/or crooked lawyers. Nowhere in his piece does Feldman even allude to this core regulatory function.

After all, if we’re not actually trying to protect the public, then all the hoop-jumping prospective lawyers are required to undertake is indeed unjustifiable. If what we’re primarily concerned with is the “opportunity” to become a lawyer, then it’s not only wrong to require certain entrance requirements before allowing people to borrow billions of dollars a year to go to law school: it’s wrong to require people to go to law school in the first place, or for that matter to take a bar exam.

Now this reductio may seem absurd — surely we don’t want just anyone to be able to hold themselves out as a lawyer to the public — but once one has made that concession, then it’s all a question of line-drawing, which is exactly what the critics of the status quo are trying to do.

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