Legal Education: Are Two Years Enough?

 

Right now there is major discontent with the structure of legal education, much of which is directed to questioning the wisdom of requiring three years of law school. Times are tough for lawyers.  he evidence on legal debt upon graduation is very high indeed. The new drumbeat, much of which has been orchestrated by Paul Carrington of Duke and my NYU colleague Sam Estreicher, pushes hard for a two-year minimum before a student can take the bar. Let the law schools earn their third year of education, and do not leave that decision in the tender mercies of the state.

I think that the proposition proves both too much and too little at the same time. 

The first objection is that this program does not go far enough. There is no reason why students need to go to law school at all in order to take the bar examination. As both men have stated, many of the most eminent figures of the bar have never gone to law school at all.  They apprenticed some, studied on their own, hooked up with a mentor, and then became world class legal scholars. But if their success is a reason to go down to two years, it is a reason to get rid of the examination altogether. The ABA on this, as other things, is a protectionist lobby undeserving of respect, and in no way should its accreditation activities restrict how law schools act. Indeed, if you removed the ABA standards on everything from books in the library to faculty status, the cost of legal education would go down in ways that would alleviate the debt problems of students. It would also allow law schools to gain more efficient internal modes of operation free from meddlesome and uninformed oversight. 

The removal of the bar will help consumers perhaps more than some lawyers, because it is quite clear that the professional model of legal advice is unaffordable at the bottom end of the socioeconomic spectrum. The need here is for the corporate practice of law, which, like the corporate practice of medicine, could break the logjam by allowing the correct mix of technology and people of all ranks and types to supply services at a price that the low income segments of the market can afford. The question here is not how the ABA rules can help access at the bottom of the market. Rather the correct question is how a varied class of private businesses can solve that problem, which they can only do if we modify all the rules that relate to the unauthorized practice of law.

The second objection is that the proposal goes too far. There is more law today than at anytime in our history. There is a greater need for lawyers today (at the top end of the market, certainly) to develop an extensive set of collateral skills that range from statistics to economics to science in order to work in their chosen subject matter area. At the same time, there are an enormous number of detailed regulatory statutes that now control such areas as labor, securities, environmental law, complex litigation, persons, telecommunications, patents and international trade. These are not subjects that can be picked up in an hour or a week. Many lawyers go back to school to learn up on these fields wholly apart from the continuing legal education requirements that are yet another form of protectionist overload. 

So how is it that there is not enough material of a traditional legal nature to fill a three-year course? That question might have been asked in 1930, when property was not a course, but included separate courses in estates, future interests, leases, mortgages, chattels, animals, and conveyancing, all of which have largely disappeared as separate courses. 

So why then the breakdown? Here is one explanation. Most lawyers today are, at heart, descendants of legal realism. They do not think of law as a collection of rules and principles that can be learned and mastered. They think of it as a subject in which every rule-like proposition breaks down into some intuitive judgment about reasonableness, which is then answered in the same way across the spectrum.  I believe that this attitude has a corrosive effect on legal doctrine, and also on legal education. The argument here is not that the law is weirdly autonomous. It is that the combination of doctrinal and analytical skills needed to learn the subject is greater now than ever before. 

When I talk with strong practicing lawyers, they do not want law schools to go overboard on clinics and work study experiences. They want them to be more sophisticated at the kinds of analytical issues that they face all the time in drafting agreements and engaging in litigation. Law schools have to heal themselves. If they do, the three years will be a down payment on a lifetime education, not a bit of useless padding that can be dispensed with as some unnecessary expense.

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  1. Profile Photo Coolidge
    @Skyler

    Amen.

    But if we break the ABA cartel, how will I pay for my student loans?  :)

    • #1
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    @RobertELee

    Law school should start in sixth grade.  Call it, I don’t know, Civics maybe.  Teach people enough about the laws in this country that they don’t have to consult a lawyer to live their daily lives.

    We have too many conflicting, unnecessary, useless, and outright harmful laws and regulations in this country, so many that an ordinary citizen can’t go throughout a day without breaking some law or other.  Now we need to train lawyers harder because even they can’t be competent with “only” two years of training?

    Here’s a thought.  Lets put law students and lawyers to work reforming the legal system in a way that makes it easier for citizens to be law abiding citizens.

    I am not anti-lawyer.  But I am against a legal? judicial? It’s so complex I can’t even get that right, system that engenders a constant fear that “Homeland Security” is going to come to my home in the middle of the night with a billion hollow-point bullets to take away for violating some law I didn’t even know existed.

    • #2
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    @RyanM

    I would love To do away with mandatory law school altogether, and eliminate all non-private bar associations. My own very clearly does not represent my interests, which is fine, but I should be able to opt out. Having a bar exam and some disciplinary system both make sense.Of course, I have 150k of student loans like many lawyers- big shocker that they all want to keep it exclusive. Add in personal egos and yikes.

    • #3
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    @Skyler
    Robert E. Lee: I am not anti-lawyer.  But I am against a legal? judicial? It’s so complex I can’t even get that right, system that engenders a constant fear that “Homeland Security” is going to come to my home in the middle of the night with a billion hollow-point bullets to take away for violating some law I didn’t even know existed. · 14 minutes ago

    That’s not quite what a lawyer is. That’s what politicians are.  Lawyers don’t make the laws (though they might draft them).  Politicians make the law.  Lawyers just help cope with what the politicians mess up.

    • #4
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    @PeterMeza

    http://ricochet.com/main-feed/Has-Legal-Education-Lost-Its-Way

    Didn’t we just do this?  I think the answer was “yes”.

    • #5
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    @

    I am a tax attorney and the specialization increasingly calls for the expensive, post-JD LL.M. program.  Given the saying we threw around in law school [(1L) Scare you to death-(2L)work you to death-(3L)bore you to death], I think a split 2-year/1-year program would be ideal for attorneys.

    Students could attend two years of law school (including a summer off for summer associateships and externships) and take the bar exam.  This would allow aspiring attorneys to take the foundational courses. Following a set period of years practicing law, the attorney returns to school for a one year program in his or her chosen legal specialization.

    Most students have no idea what type of law they will eventually practice until they have their first job. Generally your practice is determined by the need of your employer or the practice group you interact best within.  Why waste $50,000 of education on a third year of law school before you know what classes are beneficial? 

    Finally, a one-year hiatus for additional education  early in your career will alleviate burnout similar to the MBA period for investment bankers and other strenuous business careers.

    • #6
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    @NickStuart

    If a Bar Exam Review Course is virtually a requirement for every law school grad aspiring to pass the Bar, what was the point of 3 years of law school?

    If a law school graduate isn’t capable of passing the bar exam for the state in which the school is located, it doesn’t say very much for the school that it wasn’t able to do in THREE YEARS what the Bar Exam Review Course is able to do in what, three weeks, three months? Or that a student couldn’t do online self-paced?

    My wife and I need new, very simple, wills. And I need some help setting up conveyance of our estates to my disabled child. And I CAN’T GET THE HELP AT A PRICE I CAN AFFORD.

    Disabled person situations especially. I went through FOUR attorneys before I found one who would even return my calls. Can’t blame attorneys trying to repay several hundred thousands of dollars of law school debt. But I don’t need a highly_highly_highly educated graduate of a distinguished top-tier law school. I need someone who knows his or her way around forms and the courthouse.

    • #7
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    @RobertELee
    Skyler

    That’s not quite what a lawyer is. That’s what politicians are.  Lawyers don’t make the laws (though they might draft them).  Politicians make the law.  Lawyers just help cope with what the politicians mess up. · 48 minutes ago

    Help people wade through the mire?  My favorite lawyer joke is “The only good lawyer is the one you need.”

    • #8
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    @ScarletPimpernel

    Skyler: “Politicians make the law. Lawyers just help cope with what the politicians mess up.”

    Hardly. Many lawyers who become judges make up law all the time, often in the name of a “living constitution.”  But the idea of law passed by legislature being open to constant reinterpretation seems to be common, abeit, not as common as the idea that the Constitution, uber-legislation passed, and amended, by the sovereign people, is open to constant creative reinterpretation.  And lawyers are often the ones pussing for such end-runs around the legislative process.

    • #9
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    @ScarletPimpernel

    Why is law school a separate graduate program?

    Why not make it an undergraduate major, perhaps a five-year BL, akin to other specialized undegraduate degrees?

    • #10
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    @user_264030

    I think the two year/one year proposal Pat suggested is right. By my third year of law school I was really scraping the bottom of the barrel to think of classes that I wanted to take or that would help me in my career. Once you do one class of “Law and _____”, you pretty much have learned that way of thinking, and it’s just a matter of picking up the substantive law in the area. I would say one year for the official core stuff, one year for the de facto core stuff like evidence and jurisdiction/choice of law and to specialize in a certain area, and those that know what they want to do can take another year.

    • #11
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    @DocJay

    I’m on a fishing boat with a criminal prosecutor. He says four years and make the bar much harder. Btw ladies he’s single and looks like Russel Crowe, Conservative Christian.

    • #12
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    @Skyler
    Nick Stuart: 

    My wife and I need new, very simple, wills. And I need some help setting up conveyance of our estates to my disabled child. And I CAN’T GET THE HELP AT A PRICE I CAN AFFORD.

    I don’t know what state you’re living in, but wills are rarely simple, and for those that are simple, you don’t much even need a lawyer at all.  In Texas  you can just write something in your own handwriting saying what you want done with your property when you die.  No witnesses needed.  But be wary because you probably didn’t think of a lot of potential problems.

    Roughly 1500 years of legal history has created a system where anything more complex than “all to my wife” scratched on the side of a tractor while dying from getting pinned by in in a freak accident is likely going to need a lot of thought and careful preparation (and that was a real case and the tractor fender was successfully probated). 

    People complain about lawyers, but the danger of making everything simple is that people’s lives rarely fit a simple model.

    • #13
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    @RyanM
    Nick Stuart:  But I don’t need a highly_highly_highly educated graduate of a distinguished top-tier law school. I need someone who knows his or her way around forms and the courthouse.

    There is a problem with this, though, and perhaps lawyers are also to blame.  Let’s say you hire an undereducated lawyer to make your will and he misses some nuance whereby your estate passes to the government instead of the people named in your will.  That person may be liable – in my job as a criminal defense attorney, it is absolutely amazing how many things I am held responsible for, how many potential law suits, bar complaints…  the fact is, when something doesn’t go your way, you pick a person to blame, and it’s usually the lawyer.  There is a HUGE responsibility, there.  Same thing with doctors – you hire one to do a simple diagnosis of your cough… and then you die of something that the doctor didn’t have enough training to spot.  Your family sues him and ends his career – that’s a pretty big risk not just for you but for the professional.

    Tort reform.  Not popular, but necessary.

    • #14
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    @Pilli

    How about a different tack?

    Let’s make it a requirement that lawyers attend AT LEAST six years of law school and then apprentice for one year as an unpaid shadow to a working county attorney followed by two years as a pro-bono attorney for the poor in a County Attorney office.  After that, they can start or join a practice.  And the bar exam should be re-administered annually.

    We have too many attorneys chasing too few cases.  The result is that cases get taken that should never get past the phone call stage.  Too many stupid lawsuits result.  As RyanM said above:  Tort reform.

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    @ShaneMcGuire

    Should there be any obstacles to entering the market place as a lawyer? The answer is yes, and law school and the bar exam are reasonable obstacles. Two years would be reasonable for law school, I suppose, but so is three.

    There are already too many morons who have become attorneys. Open the field up to anyone who can hang a shingle on a door and pair up under the tutelage another yahoo with a shingle hardly seems appropriate. Courts are already overwhelmed by pro-se filers, principally in family law cases, but in other cases as well where the pro-se filer couldn’t find an attorney to take his case. Opening the marketplace up to everyone, at least in the context of litigation, which is my bailiwick, will further clog the courts and prevent legitimate cases from going to trial.

    • #16
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    @ScarletPimpernel

    Why is there one bar exam?  If memory serves, there are some specialized exams (for patent law?).

    Why not go to that model, with an exam for each speciality, and perhaps a less comprehensive general exam, and no law school requirement? 

    So long as the tests are sufficiently rigorous, it migth be a good way forward.

    • #17
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    @Resistance

    The ABA is certainly a progressive machine used to control the legal industry. Their near monopoly on legal education is one of the best kept secrets in the industry. I attended both an ABA, and a Non-ABA school. The most significant difference was the cost. I am still burdened with the debt from my one year at the ABA school.

    However, I found my time at the Non-ABA institution to be more productive. The professors focused on teaching the law, rather then enforcing the Case and Socratic Methods. Any law student can tell you about the sense of fear that these methods instill in them. A student finds his time in class dominated by the fear of being singled out, rather then learning the law.

    It is just sad that the conservative movement allows a progressive union like organization to control the legal industry. It is my hope that articles like this will be a clarion call to the right. Something needs to be done about this issue now.

    • #18
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    @RayGunner

    Amen, Brother Epstein!

    What kills me most is knowing my law clerks (who are great) will be putting off home and family into their late 30s in order to pay off this sickeningly overpriced nothing called law school.  For what?  $150,000.00 of additional debt for the privilege of being present while some tenured timeserver bloviates on Hadley v. Baxendale!?!?  Fie!!

    Major in legal studies.  Intern at a firm.  Take the bar.  Done.

    • #19
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    @

    All we need is the ability to produce 50% more lawyers through the same system.

    • #20

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