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Sunday, May 15, 2005

Do we need a third year of law school?

Most lawyers take for granted that law school is a three year course.   But do we really need that last year?   Historically, even after American lawyers switched from the apprenticeship model to a more formalized system of legal training at the turn of the century, law school lasted, at most, between 18 months to two years.  (I've written about the reasons underlying the switch from the apprenticeship system to a law school model here).   So the three-year term is a relatively new invention, and one that has come under some criticism as of late.

So why the third year?  As the old chestnut goes, "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. " How much truth is there in that?

I can see why law schools would want to keep a three year term;  the financials alone make it worth their while.  And professors, theoretically, are interested in passing on as much knowledge as possible to their students, as well as serving in mentoring relationships, both of which are better achieved in three years rather than two.

But what about the students?  Is there any compelling reason why law students are better off in a three year course of study, rather than two years?  Does that extra year of coursework make students better lawyers?  Does it foster a greater understanding of the law?  Or should we make law school more like business school, a two year course of study?  

I'd love to get comments from current students, lawyers and professors on this.

Posted by Laura I Appleman on May 15, 2005 at 09:48 PM in Life of Law Schools | Permalink

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Besides the financial aspect, I doubt law schools will move to a two-year model; remember, the whole idea behind calling it a "JD" degree (as opposed to the traditional LL.B) is to signify that an American law degree is a terminal degree, equivalent to an MD. Reducing the length of law school by a year will make it more similar to a masters' degree (or, shudder, an MBA degree), which will reduce its societal prestige. Obviously, this explanation is wholly superficial, but this is the nature of the beast, no?
Now, as a recent (i.e. as of yesterday) law school grad, I can say that taking an extra year of classes is entirely superfluous. The reason why law students find the third year of law school important is because it's when they assume leadership positions in extracurricular activities, whether it be law review, moot court, etc. Also, the third year of law school is an ideal time to complete externships and clinics. Thus, instead of shrinking law school by a year, I'd prefer to see schools reduce the number of credits needed to graduate, so that third-year students can devote more time and energy to these activities outside the classroom. That's my two cents.

Posted by: Yuval Rubinstein | May 16, 2005 11:09:28 AM

I would gladly forgo the additional expense in exchange for learning a little less in school. Practically speaking, I have not met many attorneys who put much stock in the "law" learned in law school. Nearly every one has said the same thing--you won't really start learning the law until you are years into your practice.

Given that law is very segmented with a number of specialties, the extra year doesn't really seem adequate for really learning a specialty. And not having the expense of the third year sure would be a load off my mind in terms of debt being incurred.

The bar to entry for becoming a lawyer (no pun intended) is the bar exam. If that can be passed after two years, is there *really* any justification in going for three? Certainly there is for legal scholarship--but advanced degrees (LLM, PhD) should be able to fill that void. For those students who want to become practicing attorneys, it would seem that two years, followed by learning in practice under the tutelage of experienced attorneys in your chosen field of specialization would produce skilled attorneys as frequently as one more measly year of school--which students rarely seem to take very seriously anyway.

Posted by: Dave! | May 16, 2005 11:10:18 AM

Great topic, Laura, and one on which I hope there will be lots of comments. Here's my quick take, from the perspective of a former law student and former lawyer and current professor, which may echo some ideas in other comments.

I am certain "the profession" would be just fine without the third year of law school. I don't think we would see a decline in the quality of lawyering; indeed, after two years of in-class experiences, law students likely could get better practical legal training just about anywhere else than sitting in a classroom. However, I think the elimination of the third year would, in harmful ways to everyone involved, dramatically increase the pressures of the law school experience (which, most say, is already pressured enough).

Consider, e.g, the change in law firm recruiting that would take place if students had only one summer; the change in course loads and structures if we had only two years to cover basic courses and important electives; the change in extra-curricular and co-curricular activities and opportunities if folks are only around for two years; and so on. My main point is that your question needs to be examined not only with third-year pros/cons in mind, but also with a broad perspective on how the elimination of that year would alter the experiences of the first two years.

That all said, I think law schools enrich the third-year experience when they offer students lots of options -- both inside and outside the classroom -- to make the most of this "extra" year. I would bet that students who had access to robust clinical offerings, diverse courses with diverse pedagogies, dynamic journal and moot court experiences, etc likely did not feel the third year was wasted or that they did not grow as budding lawyers.

Posted by: Doug B. | May 16, 2005 12:19:06 PM

Some years ago Richard Posner argued that getting rid of the 3rd year (at least in its traditional form) would be reasonable, and that at least it should be replaced w/ a year of practicum type programs for most students. Unfortunately I don't remember where he argued for this- if it was a piece of journalism or in one of his books. It seemed reasonable, though unlikely to happen. (As a contrast, law students in Russia [and, I think, many civil law countries] study for 5 years total, but of this, 3 years are accademic study and two are mostly pratical study, and it's a first degree that one takes.)

Posted by: Matt | May 16, 2005 12:34:32 PM

I do not think getting rid of the third year of traditional law school is a good idea. For a lot of students, myself included, it was not feasible to jump into a LLM program. In this respect, the third year gave me the most opportunities to take classes that interested me and not just classes that would help me pass the bar exam. Having the chance to take more seminars and writing classes was the invaluable part of the experience for me. While there are students who care more about practicing law to make a mint or to get out into the world who find the last year boring and skate through it, eliminating the third year would only hurt students who love learning the law, who love the law, and who do not have the opportunity to attend top 20 schools.
Now, my law school has a required course for the second year, 3 hours each term, that is the practical skills class. It starts with client interviewing and moves through trial by the end of the year, with workshops taught by adjunct practitioners. By the third year, you personalize your law school experience. It is the third year that will set you apart from other students, whether you do this by leadership positions in the law review or moot court, by loading up on additional ceminar classes, or by devoting yourself wholeheartedly to the firm you expect to offer you a position. The third year is where law school makes good on its promise that diversity of student experience leads to a diversity of legal practitioners.

Posted by: Joel | May 16, 2005 12:44:26 PM

I think we can accommodate Joel's concerns (above) by making the third year optional. By doing so, we afford people with Joel's interests to pursue them- perhaps it affords him an advantage in the marketplace (academic, clerkship or profesional) to do a third year.

If the ABA made the third year optional, there would be less debt for those who can't afford Joel's luxury of academe and who don't want that luxury. Law schools would need to make the third year compelling enough to entice people to voluntarily stay (through broader electives, dynamic teaching, clinical activities, free pizza, lower tuition, a choice to do a half-semester, more freedom to do internships for credit) rather than giving a bunch of trapped students leftover courses that they passed up in previous years.

I had a great third year. I enjoyed being in my mid-20s with no responsibility. I went to the classes I liked, but I put more emphasis on Irish pubs, friends, bowling nights and mischief. BAR-BRI taught me more substance the following summer- but I did enjoy the company of some good professors. Was it worth the cost? I wonder every month when the loan bill comes.

Furthermore, let's not kid ourselves about being that much better than MBAs or anywhere close to the level of med students. I respect the points, but let's remember that MBAs are still generalists and don't have to take professional exams, and med students work a heck of a lot harder and deal with disgusting things.

Posted by: Moussach | May 16, 2005 3:28:08 PM

Matt, thanks for reminding me about Richard Posner's suggestion to make the third year of law school optional. He makes this recommendation in the conclusion to his 1999 book, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (Harvard UP 1999). Specifically, Posner addresses the costs and benefits of making the third year of law school optional as a means to professionalize legal education.

See also "The Happy Charade: An Empirical Examination of the Third Year of Law School," written by Mitu Gulati (UCLA lawprof), Richard Sander (UCLA law prof) and Robert Sockslowski (UCLA researcher) for another study of the utility of the third year:

http://www1.law.ucla.edu/~erg/pubs/Sander-Gulati-HappyCharade-final.pdf

Posted by: Laura | May 16, 2005 4:38:10 PM

My only complaint with that proposal is that it doesn't go far enough. I say, "bring back the LLB," and let high school graduates enroll for that degree.

Posted by: John Steele | May 16, 2005 5:36:33 PM

One of the basic questions that this issue addresses is how do you view the legal profession? Is it something that should crank out credentialed employees to staff the big firms faster and faster with a bare enough undertsnading of the law to make sense of a bar review course? Is the law a profession steeped in tradition and grand thoughts? Do we encourage ennui or leadership?
Yes, we could certainly crank out students prepared to suffer through studying for a bar exam in two years. The benefits of a third year are more ephemereal and less quantifiable. The qualitative opportunity, while ignored by many who believe they are bored to death in their third year, should not be eliminated because people don't like it. It should be nurtured. 3Ls should be the leaders of the lawschool and they should be given the opportunity to think big thoughts before they are thrown to the workaday world that exists post-bar.

Posted by: Joel | May 17, 2005 10:09:39 AM

I'm surprised by these comments...have you supervised law student interns? In my experiences (which cover about 20 or so interns -- not a big number, but maybe statistically significant) 1Ls are largely useless, and it is the rare 2L (even from, say, harvard) who can offer anything better than a string cite that has to be checked very thoroughly to make sure it's on point. 3Ls (i.e., pre-bar recent graduates) are close to useful.

As a profession, I don't think we should offer the services of the people who are now in the summer before their third year and call it "lawyering." Now, maybe a practicum or apprenticeship would result in the same level of professional development I've seen in 3L's, but I'm not really so convinced a year of document review would be as beneficial as the added year of legal education.

Posted by: a disappointed supervisor | May 17, 2005 10:43:41 AM

I'm with Joel and with disappointed supervisor on both of their points.

Why do we want to rush law students into practice? Is there some kind of shortage of young lawyers (as if) that requires cranking up the spigot? Quite the opposite, obviously. We can (god help us) look at this as an economic matter: shorter law school periods mean more incentive for more law students and more lawyers, and we already have too many.

And why should we do that to the students? Making a third year "optional" would be tantamount to eliminating it altogether because of the financial pressures on most of the students. So we're depriving young people of the last year of, dare I say it, relative sanity before they get the lovely experience (ahem) of the practice of law. I say be a bit paternalistic and give 'em the relatively relaxing extra year.

Lets face it, for many people, the practice of law is at least solitary, nasty, and brutish. For the lucky, it is short. For the unlucky (or the "noble" public intertest types, ahem), it is poor. I cringe at the idea of subjecting relative innocents to it a year younger. (Perhaps there's some of my personal perspective in this... lord knows I know about getting into the practice of law thing too young...)

Posted by: Paul Gowder | May 17, 2005 12:16:46 PM

It's that whole "paternalistic" attitude that I dislike intensely. Not *everyone* is in law school straight out of undergrad--nor is everyone in law school at a point in life when they need to be coddled.

I would argue that your undergraduate experience is for coddling--a J.D. is a professional degree and the purpose is to train you to be a professional attorney. That can be accomplished in two years. If you want to not be rushed into practice, then you have the option of extending the academic experience with an LLM. That way, those who have the means or the desire are free to prolong the academic experience but those of us who want to practice can get on with it.

The problem with your reasoning, Paul, is that you are effectively saying, "I don't like the practice of law, therefore all students should be forced to put it off for a year." When, in fact, they could put it off for several years of their own volition by pursuing an LLM. Meanwhile, those of us who would rather just get on with it are penalized.

I am a returning student, so I'm less inclined to wax philosophic about "relative sanity". There is nothing sane about being burdened with addition debt needlessly and if a third year doesn't add value to *practicing* law then it is needless--there are clearly other options for those who want to avoid practice or pursue a career in academics. They can get an LLM, or a PhD, or an interdisciplinary masters degree in a related field. Those are all choices they are free to make, but I cannot make a choice to decide if I think the third year is worth the burden of the expense.

Frankly, the more I hear and read about it, the more inclined I am to side with John. Bring back the LLB, cut out the middle man, and stop pretending that law is somehow special in academic terms. Why shouldn't all law professors have to have *true* terminal degrees in their field of study? I hardly think requiring PhDs for law faculty would harm their scholarship. Most likely, quite the opposite.

Posted by: Dave! | May 17, 2005 2:20:13 PM

Dave, you treat practicing lawyers like cubicle monkeys in your model. So much of this discussion is getting conflated from is the third year of law school beneficial to the legal profession with how to train future legal academics. Frankly, there are not LLMs for everyone who would like one. I, for example, was unable to find one that interested me and what I wanted to do in my life. LLMs are not set up like other graduate programs. You don't go for a post JD in Law and then realize where to specialize. If you don't fit the mold that the school is putting forward, you don't have an LLM.
I have defended the third year of law school as beneficial to the legal profession as a whole: to lawyers, to the community as a whole, and to the future of jurisprudence. You seem to take umbrage with how it effects legal academia. Lawyers are not just cubicle monkeys. The law is different from other fields. It is, simply, where we take our day to day lives meeting people on the worst day of theirs. It is tied to and bound with the expression of life itself and the idea that we should crank out more lawyers faster is appalling to me.

Posted by: Joel | May 17, 2005 2:53:23 PM

Joel, I think you romanticize law a little too much.

Of course law can be more than a job. But *many* lawyers don't "meet people on the worst day" of their lives.

My wife practices real estate law. Her clients are happy, and excited at closings. Another friend does business formations: exciting and invigorating days full of potential. Sure, there are lawyers who have to help people in dire need but that's only one aspect of practicing law. There are many other exciting aspects; just as there are many other mundane aspects.

You tell the contract lawyer straight out of school on a hundred-thousand page document review that he's not just a cubicle monkey. My money says he'll laugh. A lot.

The law can be a career, it can be a calling, it can be a lifestyle. So can growing potatoes. To some, though, it is just a job; a nice job that doesn't involve having to take a shower at the end of your shift. (Okay, maybe not for all attorneys.)

I will grant you that school shouldn't only be about job training, but I can't see any reason a legal education should be so radically different than say, an MBA or CPA. (I'm not going to go into MDs, that's an entirely different ball of wax.)

What would be wrong with a system that allowed:

1. Students who want to be practicing attorneys the ability to get the professional training they need in two years (as they could in the past).

2. Students who wanted to pursue a career in legal academics could pursue advanced degrees (LLMs or an MA/MS in a related field, followed by a PhD).

3. Didn't force students who didn't want the additional training to spend the time and/or the money for something that they don't demonstratably need nor want.

There's absolutely nothing wrong with your view of the law; nor is their anything wrong with those who view it as just a job. But I think there is something wrong with forcing both types of people through the same educational grist mill, without regard to their personal and career goals. A system that allows students both options--and a choice--seems to be more prudent to me.

Posted by: Dave! | May 17, 2005 3:30:35 PM

The problem with your reasoning, Paul, is that you are effectively saying, "I don't like the practice of law, therefore all students should be forced to put it off for a year."

No, Dave, I'm not saying that.

1. I'm saying that almost nobody likes the practice of law (cf. this article, among many others, discussing a 1991 Johns Hopkins study showing exceedingly high depression rates among lawyers (anyone wanna dig up the original?). California did a highly distressing survey (PDF) suggesting that only half of the lawyers in question would choose to enter the practice of law if they had a chance to do it over.

2. I'm also saying that the alternative to "forcing" people to take an extra year is to "force" them to forego it. By making it mandatory, and ensuring that everyone does it, you create a wave of positive effects further up the system: it's accepted by employers, salaries are increased to take account of the additional loan burden, etc. By contrast, if it's made optional, legal employeys will have no reason to pay sufficient salaries to compensate for that third year, and might in fact be disinclined to hire people who have taken the third year, since it would indicate a relative disinterest in practice of law (and perhaps subversive desires to go into academia etc.). The combination of those factors, plus the preexisting financial factors, suggests that a lot of people will be put in the position of perhaps wanting to do the extra year, but not having the ability to do so without the systemic support that making it mandatory requires.

In a very real sense, it's a choice between forcing everyone to do it or forcing almost everyone not to do it. You would turn the third year of legal education from a baseline that everyone gets into a luxury reserved for the relatively wealthy and/or especially motivated.

Posted by: Paul Gowder | May 17, 2005 4:26:52 PM

My view is that we, as a profession in the academic, private, and public fields, should begin our careers with an aspiratinal education. Aspirational in the respect that we set the highest standards and giver every student the chance to meet those opportunities of leadership and intellectual curiosity. We should not structure law school around the lowest common denominator, but rather shold strive for a flexible experience that can challenge nay student if they chose to avail themselves.
We cannot do anything about students who are bored in the third year of law school. At the same time, we should not make that disenchantment with intellectual exercise and stimulation to be the benchmark of our profession. We set an aspirational standard, like the old model code of conduct, and encourage all students to reach for it. Some will do nothing more than the minimum required to skate by but some will rise to the occiasion as they otherwise would not have risen. We should evaluate lawschool with respect to the opportunities at the top end and not how close to the LCD we can come.

Posted by: Joel | May 17, 2005 5:03:22 PM

If we conflate this discussion with a discussion about the work of lawyers and whether it is good work, fulfilling, etc., we'll miss the point.

Refocus: in order to be a lawyer, we require three years of law school to join our guild. Remember that it is a guild. The third year has served as an additional barrier to entry. It is true that the bar exam no longer holds that edge- I could take a reasonably intelligent high school junior, give them BAR-BRI Plus and they could pass.

The third year does one thing that I will concede helps the profession- it makes people age one more year before entering.

If we want to give people time off to reflect before descending into hell, why charge them thousands of dollars to do it? Make being a lawyer like buying a gun- in order to do it, study it first and then put in a waiting period before use of the license.

Law schools will not financially suffer from dropping the third year- they will first assess the impact on operations and then raise tuition to get them back to where they were with the 3 year program. They've got great business models.

Posted by: moussach | May 17, 2005 5:15:28 PM

Paul & Joe: I don't necessarily disagree that more education is bad; in fact, I personally believe more education is good. However, I also think that the third year experience isn't as idyllic as you make it out to be. In many instances, I don't think it is at all about more education at all; it's about more tuition.

Additionally, I don't really support making the third year optional; I advocate eliminating it entirely. I understand this is not necessarily compatible with the current state of affairs, but we're day-dreaming anyway. I think we should refocus the JD in the shape of an LLB, with the "option" of continuing the educational/scholarship/advanced learning (whatever you want to call it) through LLMs (or MA/MS) and PhD work. That doesn't devalue an optional third year, it encourages advanced degrees. And it doesn't penalize those who stop after a JD with nothing more than job aspirations. It's a model that virtually every other field of study follows: what makes law so special? Nothing, if you ask me.

I don't want to beat a dead horse, but aside from idealism, you haven't really presented any reason why a JD should be treated so radically different than an MBA. Or am I misunderstanding? Would you advocate that there should be a third year added to a typical MBA curriculum? Why not make a law degree four, under your reasoning?

Posted by: Dave! | May 17, 2005 5:46:27 PM

Amen to Dave's post.

We can talk about "aspirations." I aspired to have three full years of legal education. By the time I got to my third year, I was left with the dregs- not just of coursework- but of professors whom I avoided because they did not want to teach.

The law schools have no incentive to make the third year better- perhaps if "quality of third year" suddenly appeared as an important U.S. News variable, you would see innovative curriculum and renewed enthusiasm from the schools around the third year.

This isn't just about student aspirations- it's about what the law schools offer. They pretty much have you by third year and can provide you with a low quality experience. And yes, as a student you can make a chicken sandwich out of chicken droppings, but the schools provide chicken droppings. Why not a third year program, with more flexibility, but also more structure- it is the school's last chance to mold the students (and the school's reputation) before sending them into document production for the next five years.

Posted by: moussach | May 17, 2005 6:54:53 PM

Dave: what's wrong with idealism? I don't particularly feel the need to have any reasons other than idealism.

The difference between a JD and an MBA is that we -- correctly, I think -- have this idea that lawyers, unlike businessmen, provide -- or should -- some service to society. Society has an interest in the people who mediate between the public and its laws having more than just "job aspirations." Society has an interest in those people having some idea of the place of law in society and justice and philosophy and economics and all the rest. The same can not be said for the MBA, who needs only know management and finance and marketing, and as to whom the only party in interest is generally the shareholder. (Although I think an argument can -- and, again, should -- be made that since corporations are a de facto form of governance, their leaders ought to be subjected to a higher standard too, that argument isn't as blatantly strong and widely accepted as is it with regard to lawyers.)

Law is special: it's intimately intertwined with the democratic process and our attempt to be self-governing. When you're admitted to the bar, you have a dual role as the servant of society and the servant of the client. There's even an oath.

Now, the fact is, the profession has fallen far, far below that ideal. There are any number of reasons for that. But it will hardly help to encourage more jobbery.

Posted by: Paul Gowder | May 17, 2005 8:40:47 PM

As a second career law student having just completed my second year, I am strongly in favor of maintaining the current 3 year requirement. A major purpose of law school is to train students to analyze the law and think like lawyers. The first year and a large part of the second year are consumed in learning fundamentals. Towards the end of the second year, students start realizing the connections between Contract Law, Constitutional Law, Criminal Procedure, etc. At the same time students need to learn some practical skills and in most cases how to write effectively. From my perspective after the second year most students have not sufficiently mastered the basis skills and, as another blogger has pointed out, would be much less useful to an organization requiring legal work and lacking in a broad legal foundation.

Posted by: Bernie A. | May 17, 2005 10:40:45 PM

Paul: I think that's a very narrow and uninformed view of what business people do. Generalizing that all MBAs work for corporations and answer to "the shareholders" is just as bad as saying all attorneys are ambulance chasers.

Yes, I will agree that *some areas* of the law are incredibly noble and especially part of the democratic process. I don't see how one year extra year of law school, taking "Law and the Simpsons: The Life of Lionel Hutz" embiggens our society.

But hey, I'm a cynic like that. Just remember, there are many a lawyer out there who answer first to the shareholder--even after three whole years of school.

Posted by: Dave! | May 18, 2005 12:01:26 AM

Dave, my arguments above are primarily idealistic. They are not grounded in the economics of cost or of life but go back to what does it mean to be a lawyer. Historically, lawyers have been leaders in tehir communities. Even the lawyer of the lowest intelligence is going to be smarter than your average bear. As was noted above, the law is inherantly intertwined with our system of government and it is not just a commercial exercise. It is different, but did you expect a different view on this blawg?
If the problem you have with the third year is that law schools give up on it (and I do offer my condolences if the law school(s) you experienced did give up on your third year) then lets look at why. If this is another problem with inflated rankings and numbers coming out of the US News rating system, lets look at that. Third year is most often where clinics are taken.
Law is too much a part of society and too much a part of our government at this point to turn it into a commoditized degree that is two years away.

Posted by: Joel | May 18, 2005 9:56:11 AM

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