Max Raskin is a fellow and adjunct professor of law at New York University School of Law. He is a co-founder of Uris Acquisitions.
It’s easy to laugh at Kim Kardashian, who recently announced that she failed the California bar exam, joining the ranks of celebrities such as Kamala Harris and Jerry Brown. But Kardashian’s failure is not a knock on her — it’s an indictment of the bar, one of the most powerful guilds in America. And for the first time in a century, technological change may finally break that cartel’s grip.
The bar exam, the Law School Admission Test and law school itself are the price you pay for joining a government-protected legal guild — no different from taxi medallions or liquor licenses. It is essentially illegal to represent someone else in court without passing this test, which is an exception to the general rule that people should be allowed to hire whomever they want without the government’s permission. In California, almost half of the 7,362 applicants who sat for the July exam this year failed. These numbers are not based on some inviolate benchmarks but based on California having one of the nation’s highest cutoff scores for passing (a score that is adjusted depending on the whims of the California Supreme Court).
The best defense of this mechanism is that while it is not necessary to memorize the arcane rule against perpetuities to be a competent lawyer because you can always use Google, the temperament of the person who has the sitzfleisch to study for these exams is the kind of person who makes an effective lawyer. Before she could apprentice, instead of attending a traditional law school, Kardashian said she failed the required “baby bar” exam three times. .The argument goes that this demonstrates she is not temperamentally or intellectually suited to be a lawyer. (She did pass it on her fourth attempt.)
Many empirical studies question the effectiveness of the bar exam in predicting lawyerly prowess, but this should be settled by a free market. We don’t make auto mechanics or electricians go to school for an additional three years, even though their professions can cause much more physical harm. We rely on credentials, social signaling, reviews and other market mechanisms for determining quality. In America, central planners don’t decide how many members of the population are allotted to each profession.
Lawyers are not doctors, so more experimentation in the legal profession can be tolerated. Lawyers are not constantly making life or death decisions, and when they do, there are procedures to ensure that counsel is competent. Run-of-the-mill contract review and regulatory filings, however, don’t warrant a licensure scheme.
This is especially true in light of advances in artificial intelligence. AI systems already draft wills, nondisclosure agreements, term sheets, employment contracts and regulatory memos at associate-level quality. There are those who point to the occasional lawyer who doesn’t check hallucinated citations and embarrasses himself in court, but these are exceptions. The vast majority of lawyers who use AI don’t want to admit it for the same reason doctors don’t want to admit to Googling symptoms, so there is a negative selection bias where stories of federal judges sloppily using AI catch more attention than routine use of the tool.
Standardized legal work, which primarily consists of updating form documents, can almost certainly be automated. The billable hour is not a sacrosanct system etched on the tablets of Moses. It is a 20th century invention that will collapse when the cost of producing effective legal work falls dramatically because of AI. Lawyers expect to save 240 hours a year on average by using generative AI tools, according to a Thomson Reuters survey this year. This is partly due to the nature of law itself — once a rule turns out to be just and workable, it can simply be repeated. In our common law system, this means that law ought to be more, not less, efficient as time goes on.
Lawyers will likely respond to this technology by maintaining their legal protections until they have adapted the bare minimum to more tolerate AI. Whether it’s unauthorized practice of law rules, the need for multistate licensure, or restrictions on outside funding and nonlawyer ownership of firms, the legal cartel has a host of tools to prevent efficiency.
One of the most nefarious forms of protectionism is the limit on nonlawyers being partners in law firms. This rule prevents specialization, which is the cornerstone of economic order. Why would someone think that a lawyer who has trained in a narrow field would be good at firm operations or marketing or hiring? In most other industries, chief technology officers deal with tech, chief operation officers deal with operations and hiring is with human resources. But in law firms, essentially all the ultimate decision-makers must be lawyers. Kim Kardashian could surely run a more efficient marketing department than a white-shoe firm.
These rules are marketed as protecting justice when they really protect incumbents. Over the past decade, legal costs have risen about twice the rate of inflation, while technology should have driven costs down.
The legal profession has existed by convincing Americans that scarcity is a virtue in itself. But a guild isn’t the same thing as a guardian. There’s a good chance that the billable hour goes the way of the expensively bound legal reports gathering dust in law firms and libraries across the country.
The bar can fight by invoking tradition, fearmongering and tightening the rules, or it can open the doors and allow for innovation. Justice is not meant to be a luxury good.
The post Actually, the bar exam failed Kim Kardashian appeared first on Washington Post.
