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Should the US Eliminate Entry Barriers to the Practice of Law? Perspectives Shaped by Industry Deregulation†

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Should the US Eliminate Entry Barriers to the Practice of Law? Perspectives Shaped by Industry Deregulation† American Economic Review: Papers & Proceedings 2016, 106(5): 171–176 http://dx.doi.org/10.1257/aer.p20161001 Should the US Eliminate Entry Barriers to the Practice of Law? Perspectives Shaped by Industry Deregulation† By Clifford Winston and Quentin Karpilow* States’ requirements that lawyers obtain a network industries i.e., transportation, commu- license to practice law, as well as American Bar nications, and energy( In particular, entry bar- Association ABA regulations of legal practice, riers limit competition). and raise prices. In the constitute barriers( )to entry to the legal profes- long run, they compound those inefficiencies sion. Specifically, all but a handful of states by impeding operations, innovation, and tech- require would-be lawyers to graduate from nological advance. Although network indus- ABA-accredited law schools, and every state try regulations were motivated by competitive except Wisconsin requires them to pass a bar concerns, rather than ethical considerations, exam.1 Before the Great Recession, law schools we argue that eliminating entry barriers in legal rejected nearly half of all their applicants, and services would generate benefits that are similar many capable individuals are either unwilling to those resulting from network industry dereg- or unable to spend three years in law school ulation. Specifically, prices would fall as com- and graduate with debts that can easily exceed petition from incumbent firms and new entrants $150,000.2 Under ABA requirements, firms that intensifies; in the long run, competitive forces sell legal services must be owned and managed and operating freedom would incentivize firms by lawyers who are licensed to practice in the to produce innovations that significantly benefit United States, meaning that corporations and consumers and the broader economy. In the case foreign law firms cannot compete in this market. of network industries, deregulation gained sup- According to many in the legal community, port from experiments that previewed its likely the entry barriers ensure a minimum standard effects. Although some deregulatory experi- of quality, which is necessary because consum- ments have begun in legal services, more are ers cannot distinguish between competent and needed to showcase the potentially large gains incompetent lawyers. Meanwhile, the exclusion from deregulation. of corporations is justified on the ethical grounds that corporate entities have an incentive to rep- I. Entry Deregulation’s Effect on Competition resent their shareholders instead of their clients. In this paper, we argue that, notwithstanding State licensing requirements constrain the their intended function, entry barriers in legal supply of lawyers, while ABA regulations shield services have created inefficiencies that paral- private law firms from additional sources of lel those generated by entry regulations of US competition. Their impact on lawyers’ earnings is magnified by government policies that gen- erate ever-growing demand for legal services.3 * Winston: Economic Studies, Brookings Institution, Winston, Crandall, and Maheshri 2011 , for 1775 Massachusetts Avenue, Washington, DC 20036 ( ) e-mail: [email protected] ; Karpilow: Law example, estimated that earnings premiums for School,( Yale University, New Haven,) CT 06520 e-mail: ( lawyers amounted to $64 billion in 2004, or [email protected] . $71,000 per practicing lawyer.4 They further † Go to http://dx.doi.org/10.1257/aer.p20161001) to visit the article page for additional materials and author disclo- found that lawyers at all income levels—not just sure statement s . 1 California( is) the most notable state to have its own law school accreditation process. Wisconsin allows graduates of the state’s two major law schools to practice without taking 3 These policies include economic and social regulations, a bar exam. as well as liability and intellectual property laws. 2 Rejection rates among law school applicants fell as the 4 Here, earnings premiums equal the portion of lawyers’ job market for lawyers tightened after the recession. income exceeding the opportunity cost of their services. 171 172 AEA PAPERS AND PROCEEDINGS MAY 2016 the highest earners and not just those at the larg- be individuals rather than firms, as in the case of est law firms—received substantial premiums. industry deregulation, they would still enhance Would entry deregulation reduce legal ser- competition and the quality of some legal ser- vice prices and eliminate earnings premiums vices. Moliterno 2013 predicts that deregula- through greater competition? Some have argued tion would unleash( a new) era of competition, as that the market for lawyers is fundamentally corporations and entrepreneurs force traditional noncompetitive because few people have the law firms to become more innovative competi- human capital to master the complexity of legal tors. An example of the type of entrepreneurial matters Hadfield 2000, p. 67 . However, net- spirit that deregulation might accelerate is Sky work industries( were also believed) to be fun- Analytics, a legal software company that bench- damentally noncompetitive and to require entry marks how much a firm spends on legal services regulations, albeit for different reasons i.e., and how much money it could save if it used large scale economies, economies of scope,( different lawyers and law firms Maheshri and and significant financial entry requirements . Winston 2014 . ( Notably, though, network industry deregulation) ) taught us that i theoretical concerns about mar- II. Entry Deregulation’s Long-Run Benefits ket competitiveness( ) were exaggerated in prac- tice, and ii consumers broadly benefitted when Participants in the legal profession would entry barriers( ) were removed Winston 1998 . need time to adjust fully to entry deregulation. For example, Southwest Airlines—a( product) Such adjustments, however, would reduce the of airline deregulation—has not only become inefficiencies that developed under entry regula- the standard bearer for low prices, efficiency, tion and, more importantly, would result in inno- and consistent service, but it has also pressured vations that significantly increase the benefits of other airlines to improve their competitiveness. deregulation. Schneider National played a similar role among deregulated trucking companies. Competition A. Network Industry Adjustments among incumbent deregulated railroads intensi- fied as i the least efficient rail carriers exited the By increasing competition in network indus- industry( )through mergers, and ii the remaining tries and giving firms greater operating freedom, efficient carriers usedlong-term ( ) contract rates deregulation spurred innovations in marketing, to compete aggressively for shippers’ business. operations, and technology that improved firms’ Indeed, even rail duopolists’ prices fell because efficiency, service quality, and responsiveness to losing a shippers’ business meant that the rail- consumers’ preferences. Many of those innova- road would have to wait several years before it tions were not and probably could not have been had a chance to regain it. At the same time, some anticipated by market participants and students of shippers also exploited various forms of compe- the industries. Deregulation also led to improve- tition to negotiate lower rates Winston 1998 . ments in corporate governance—namely, better For example, Alabama utilities( that normally) educated and more entrepreneurial managers— received coal shipped from Colorado could that contributed to innovative activity Winston receive it from Kentucky source competition , 1998 . Importantly, the gains from deregulation( and utilities that used coal( could shift to natural) extended) beyond the industries that were dereg- gas or oil if their technology permitted such sub- ulated and the consumers of their products and stitution product competition . services. For example, by increasing the extent In a similar( vein, entry deregulation) of legal and frequency of air transportation service, services could increase competition and reduce airline deregulation spurred the growth of the prices. Remynse 2014 , for instance, argues banking sector in Charlotte, North Carolina, and that consumers would( benefit) from new entrants, back-room supporting services in Reno, Nevada such as low-cost lawyers, foreign lawyers, and and North Dakota Winston 2013 . quasi-lawyers.5 Although those entrants would Litan 2014 argued( that deregulation) was the impetus( for) revolutionary innovations in operations and products that have generated 5 Quasi-lawyers would have legal training, but would not hundreds of billions of dollars of benefits for have graduated from an ABA accredited law school. the US economy. For example, by improving VOL. 106 NO. 5 PERSPECTIVES SHAPED BY INDUSTRY DEREGULATION 173 the efficiency of transportation networks, dereg- it could be. Unregulated legal service providers ulation increased the speed and reliability of have the potential to innovate and transform the i small shipment deliverers e.g., UPS and legal services industry just as other unregulated Federal( ) Express , which spurred( the growth of firms transformed their industries. Internet retailers,) and ii carriers of large freight Deregulation could also have positive effects shipments, which enabled( ) manufacturing firms on economy-wide productivity. Occupational to significantly reduce their inventories. licensing has distorted the allocation of labor Litan pointed to large
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