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Saturday, September 7, 2013

NY Times: Should the Third Year of Law School Be Cut?

NY TimesFollowing up on my prior posts (here, here, here, and here) on President Obama's support for a two-year J.D.:  New York Times, Should the Third Year of Law School Be Cut?:

Philip G. Schrag (Georgetown):

Obama’s suggestion to cut law school education from three years to two has surface appeal. But the result would be that new lawyers would be exposed only to basic survey courses and would receive little of the specialized training that their future clients will need.

It is virtually impossible to construct a four-semester curriculum that would include the basic subjects such as corporations law, criminal law and procedure, the introductory tax course and evidence along with more advanced subjects such as corporate taxation, the law of government, international trade law and negotiation.

Marsha N. Cohen (UC-Hastings):

President Obama seems to have endorsed this week the lawyer training model being implemented by our new national nonprofit, Lawyers for America, incubated by University of California Hastings College of the Law but available to all law schools. Fellows spend their third year at a legal nonprofit or government agency. After graduation and the bar exam, they return to the same workplace for a year, earning a fellowship stipend, the funds for which are provided by the agency, which benefits from low-cost fellows.

Douglas G. Morris (Federal Public Defender, New York):

Here is my experience, based on 30 years as a lawyer working with scores of students. Compared with second-year students, third-year students stand out. They know more. They analyze legal issues better. They conduct themselves more professionally. My counterproposal is this: Make law school four years.

Washington Post op-ed:  Why Legal Education Should Last for Three Years, by Bruce Ackerman (Yale):

President Obama was dead wrong last month in suggesting that law school educations should be only two years. The third year is not an expensive frill but a crucial resource in training lawyers for 21st-century challenges. ... If Obama’s “cost-cutting” measure were adopted, it would impoverish American public life. Once two-year graduates move into practice, they won’t be able to deal adequately with bread-and-butter issues of antitrust, intellectual property or corporate law, let alone with the challenges of civil rights or environmental law....

In contrast, if law schools redeem the promise of a three-year curriculum, their graduates will have something valuable to contribute to the larger conversation. They will never rival experts in their command of statistics and social science, but so long as they understand the basics they will be in a position to integrate technical insights into a broader understanding of the fundamental values of the American legal tradition.

http://taxprof.typepad.com/taxprof_blog/2013/09/ny-times-2.html

Legal Education | Permalink

Comments

It seems like everyone is against this proposal except the people who were already doing it, anyway.

Posted by: michael livingston | Sep 8, 2013 3:40:37 AM

The better way to go: make law school four years (i.e., an undergraduate degree).

Posted by: John Steele | Sep 8, 2013 9:33:12 AM

John Steele is absolutely correct.

The problem isn't the length of Law School, the problem is the requirement, enforced by bar admission rules in most states, that the prospective lawyer go through 7 years of post secondary education.

Of the 7, 5 years, costing anywhere from $100,000 to $300,000, are completely wasted.

This is easy to prove for the undergraduate years. Neither the law schools nor the bar examiners have ever specified that any particular content be learned during those years. The prospective lawyer is best advised to find in the easiest major on campus, and shun STEM to avoid getting Bs. He may then spend those golden years drinking and hooking up. What the hey, its only money.

As for the 5th useless year. It is the 3rd year of law school. In my day, we said that the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. I can't recall learning anything in my third year, except how to play cards. And no lawyer I have ever met has thought it was anything other than a waste. So, why do we make the kids pay for it? What did they do wrong? that they should have to stump up ~$60,000 and forgo a year of earnings. The thing to do is not to fix it. It is to abolish it.

The solution is two fold.

First, the bar examiners should drop the 7 year requirement. As I have demonstrated, 5 of them are wasted, are far too expensive and and involve too much opportunity cost. (not totally on point, but I don't see why the bar examiners require an undergraduate degree, they should limit themselves to what is required to go into a court room, the adjective law).

Second, the law schools should restructure their basic program. Only two years -- 16 semester courses -- of legal subjects* are necessary to be able to practice law. They can be taught to BAs, but they could also be combined with two years of general education for a 4 year undergraduate program. In either event the person who successfully completed the program would be given the old LL.B. (Bachelor of Laws**).

Advanced skills can be taught in LLM programs that would not be required by the bar examiners, although they might be required by some employers. But, you don't need them to work for the county DA or to join a suburban practice that does car wrecks, DUI, and divorces.

Is this workable? Of course it is. My father z'l and my grandfather z'l, both had undergraduate LL.B.s, and practiced law with great success and much honor in the bar and the community for many years (1921 - 1966 and 1947 - 1990). So it was for hundreds of thousands of lawyers before the organized bar talked the bar examiners into the 7 year requirement. Just remember, Abraham Lincoln did not go to law school. And you, anyone who reads these words, are not a better lawyer than Abraham Lincoln. Really, you aren't.

** The J.D. is the most ridiculously overblown degree in the world. It has nowhere near the academic content of a PhD, and the comparison to an MD is absurd, not only do the MDs require 4 years, but their undergraduate education has content requirements, and they are not really fully fledged as physicians or surgeons until they have completed at least 3 years of residency and two more examinations.

* Adjective law: Civil Procedure 2 semesters, Criminal Procedure 2, Federal Jurisdiction 1, Appellate Procedure 1, Evidence 1, Ethics 1.
Substantive law: Criminal Law 2, Torts 2, Property 1, Contracts 1, Commercial 1, Associations 1.

Posted by: Walter Sobchak | Sep 9, 2013 7:58:58 AM

I posted the following at Instapundit:

“Yes. In fact, I'd take it a step further. There is no reason why law school should be a graduate program. Everything a practicing lawyer needs to learn in law school can be learned during the junior and senior year of a bachelor program. Colleges should go back to giving LL. degrees: 2 two year LL.A. degree for paralegals that could also serve as a credential for general office workers, police, and other careers that involve some dealings with the law; 4 year LL.B. degree that allows graduates to go to work practicing law under the supervision of a licensed attorney (graduates with 4 years of supervised experience should be able to take a streamlined bar exam and apply for a license from the state bar); 1-2 year post-bachelor LL.M. degree that either allows a foreign attorney to practice in the U.S. subject to state regulation, or gives an attorney in the U.S. specialized instruction in a narrow field of law (tax, etc.); and finally, the LL.D. degree with a doctoral dissertation as an academic credential - mostly for law professors at elite universities, appellate judges, etc. Speaking of elite universities, we have way too many law schools now. We need about half of them to close up shop. We really only need one state university in every state, plus another 1-2 state universities in high-population states like California, New York and Texas, plus maybe a dozen or so elite private universities. And only the most elite need to bother with curriculum at the LL.D. level. Law schools need to start hiring professors with solid real-world practice experience as well as academic credentials. Most law schools would be able to get by hiring mostly lawyers with 5+ years of practice experience and LL.M. degree focused on the area of law they teach, and maybe a few with LL.D. to serve as chairs, deans, etc. If I had the power to waive a magic wand and make it so, this is how I would do it.”

After reading the comments here, especially the one about the 4 years of post-bachelor law school counterproposal, I will add the following:

Yes, you are absolutely correct that the law student with 4 years of law school will be able to learn more and be better educated than the law student with 3 – or 2 – years of law school. That is an axiomatic “duh.” However, lawyers do not stop learning after they graduate and pass a bar exam. They continue learning over their careers, and real-world practice experience is far more valuable to the client than additional legal education. In my ideal example, the LL.B. graduate does not simply take a bar exam and become a licensed attorney. Instead, the LL.B. graduate is able to go into practice UNDER SUPERVISION for a 4 year “journeyman” period. During this time, the young associate is gaining real-world work experience that is superior to additional classroom education – but the client is still represented and served by the licensed attorney. Only after a period of actual work experience would such a journeyman law associate be able to take a bar exam and become licensed. This will result in better trained, better prepared young lawyers upon licensure. It also offers the bonus of allowing young lawyers to avoid the massive costs of current legal education while earning living-wage salaries of $15-20 per hour as associates. Not only does this make life better for the young lawyer, it also takes away some risk: if, after a few years of post LL.B. work, you decide you made a career mistake and want to transition to other work (as many with a J.D. end up doing later), you can have a lot more financial stability and freedom. It would be a win for everybody – except for law schools, of course…

Posted by: David Gulliver | Sep 9, 2013 10:45:52 AM

For a vision of a 4-year program, here is the advice I had for UC-Irvine, back in 2007 when Paul Caron was running a series on that theme.

http://taxprof.typepad.com/taxprof_blog/2007/10/john-steeles-ad.html

UCI has an undergraduate (LLB) and two graduate (JD & LLM) law programs.

Undergraduate teaching emphasizes lectures, case studies, and skills training for five semesters, with elective seminars thereafter (sometimes taught by grad school profs). Summer internship programs at law firms, non-profits, and government law departments teach students practical skills and enlighten them about career choices. The LLB program attracts socio-economically diverse students who amass less debt and choose jobs they truly want. (Undergrads studying business, history and poli-sci often take LLB courses.)

After a few years of practice, some LLB alums return for one or two year LLM degrees in specialties like public interest, local and state government, and commercial transactions. UCI runs a night-school LLM for local prosecutors and defenders, who study criminal justice policy and work on advanced trial skills. Local courts rely on the program for empirical studies and reform innovations. UCI's LLB alums have found success entering the nation's elite LLM programs, which covet their experience and socio-economic diversity.

The JD program chafes under the "standard model" resulting from ABA accreditation, USN&WR rankings, and UC budgeting. But the LLB program's existence permits the JD program to tilt slightly toward an academic graduate school model -- which the JD faculty favors. The JD program has risen within the top 40 but, alas, the standard model straitjacket has produced another standard JD program populated mostly by upper middle children of upper middle class parents. But UCI's LLB and LLM programs have shaken up American legal education.

Posted by: John Steele | Sep 9, 2013 9:14:38 PM