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TitleComments on the Legal Education Cartel
Author(s)Lloyd Cohen
First Page25
AbstractI have in mind as a standard a perfectly competitive, fully informed, minimally regulated market of for-profit institutions from which people seek a legal education in order to acquire the knowledge, and learn sufficient craft that they may enter the legal profession and practice it with appropriate skill. While it might seem obvious that in an essay on legal education in America I should posit some reasonably well formed theory of its proper form and character, I decline to do so. While along the way I will share a few observations on that question that is not what this essay is fundamentally about. Instead I will suggest several ways in which the current market differs form the standard referred to above and discuss how those differences likely increase the cost and radically distort the character of legal education.

There are three related themes to this paper. First, I will restate in miniature the critical observation (well made by others) that law schools are one of the two great barriers to entry of the legal profession's cartel. While this is the Gibraltar that shapes the major contours of legal education I will not discuss it in great detail for the simple reason that that project has been well performed by George B. and William G. Shepard. Second, I will explore the unique manner in which this cartel operates. While all cartels raise price and reduce quantity as compared to what would prevail in a competitive market, the legal education cartel has some unusual features that channel and constrict those cartel generated rents into forms peculiar to the academic world. The shorthand version of the question we will explore is who "owns" the law school, and what do they seek to maximize. The argument I will offer is that law schools, much like their almost universal parents, universities, are hybrid enterprises. They partake in the characteristics of, and bear similarities to: (1) the worker owned firms in the former Yugoslavia; (2) traditional non-profit enterprises; and (3) large equalitarian partnerships. This results in a variety of peculiar and likely unforeseen financial and political incentives. Third, there is something quite unusual in the extreme sorting function of law schools. In legal education, more than in the rites of passage of any other profession, the most powerful impact of the law school at which one matriculates is on the sorting of the graduates based on their entering credentials, rather than on any putative superiority of the legal education they receive at higher ranked institutions. This has the result of sharply differentiating the markets in which law schools at the top and bottom of the food chain operate and the character of the legal education they will provide. Ironically, it is widely held among the professoriate that at the upper reaches of the legal academy there is an inverse relationship between law school rank and the quality of the legal education offered.