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I'm aware of a couple states that have alternative methods to become a lawyer but most states stipulate that all practicing attorneys must A. complete courses from a recognized college and B. stay in good standing with the state bar.

What laws give authority to the non-gov state bars, who in turn dictate which schools and education are required? Why isn't law practiced freely on an open-market where merit alone is all a person would need to build a law practice?

  • Mandatory state bars typically are governmental bodies. As a general rule, they're agencies of the state court system. – cpast Jun 8 '15 at 23:31
  • @nomen agentis, I think the first amendment allows for freedom of speech in conjunction with freedom of assembly which would not allow a court to dictate who speaks on behalf of someone compelled to defend themselves. – irth Jun 10 '15 at 22:27
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States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates.

For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source

State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts).

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    I would add that the legal profession is far from unique here. You can't just decide you're a doctor and start treating patients, and you can't just decide you're an architect and start designing buildings. – chapka Jun 9 '15 at 2:26
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    @irth For federal courts, specifically law.cornell.edu/uscode/text/28/1654 and also (more generally) law.cornell.edu/uscode/text/28/2071 (explicitly giving courts rulemaking authority) and law.cornell.edu/uscode/text/18/401 (court has authority to punish contempt). Were those statutes not there, a court would still have authority, because it's part and parcel of the authority of a court to hear cases and make decisions. Not all laws are statutes. – cpast Jun 10 '15 at 22:03
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    Let us continue this discussion in chat. – cpast Jun 10 '15 at 22:09
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    What about the problem of vagueness and the definition of practicing law? – Mr. A Apr 11 '16 at 13:33
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    @irth Doctors must be licensed; they may or may not hold an MD degree (consider osteopaths). The right to prescribe medications depends on the license, not the degree. States license doctors, as they do architects. – phoog Apr 11 '16 at 20:58
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Most state constitutions explicitly adopt the common law of England as the basis for their laws. England required and requires attorneys to be called to the bar after fulfilling certain educational requirements.

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