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Tuesday, May 17, 2005

Third Year of Law School: Part II

Well, as I suspected, there is a wide range of opinion of whether we should continue to have a third year of law school.  Let's see if I can sum up the prevailing themes, for and against:

1) We should not have a third year of law school because it is a waste of student's time and money.  With law school tuitions at $30K for private schools and at least $15 K for public schools, per year, this is not an insignificant argument.   Plus, this argument goes, perhaps students can find a better use of their time, either by starting in the working world or doing some sort of internship, that would provide more marginal utility than another year of classes.

2) We should have a third-year option of law school, which would give students the ability to do supervised intern- and externships if they wished, but also graduate early if they so desired. 

3)  We should have  a third year of law school because students cannot learn enough in two years to become quality, ethical lawyers.  Law school does not consist only of classroom learning, but also involves learning how to become  an upstanding member of the profession.   We need this third year, the argument goes, to turn our students into better lawyers all around.  This is the "why rush students into practice" argument.

4)  We should have a third year of law school because having only two years would (a) devalue the professional degree, and (b) make the hiring pressures impossible for first years, thereby affecting the second year of law school as well. 

5)  We should eliminate law school as a profesional school, entirely, and reinstitute the LLB degree, allowing prospective lawyers to enter law school straight from high school (as they do in Europe and used to do here.  Hugo Black never attended college, but went straight into law school because he was rejected from his college choice).   

6) On the other extreme, as Orly argues for below, we should make a two year degree available for most lawyers and then force law professors to get a PhD if they want to teach.

Personally, I'd pick option #2.  Although I loved law school, and got a lot out of my third year, I don't think that it's necessary for most students.  Those who want to stay and take extra classes or do internships may do so;  those who wish to graduate early, either for professional or financial reasons, may also do so.  This already happens in many law schools I know of, where students graduate a semester early in order to pursue other options. 

Orly's idea about requiring law professors to get a PhD is interesting, but ultimately unworkable, I think.  Law is different from other graduate disciplines in that it daily affects people's lives and livelihoods.  Unlike other disciplines, such as English, we need our professors to have at least little practice/real world experience, which they would not have if required to get the PhD.  As Robert Cover wrote almost 20 years ago, violence is inherent in law's practice:  "Legal interpretation takes place in a field of pain and death." (Robert Cover, Violence and the Word, 95 Yale LJ 1601 (1986)).   Accordingly, to have a corps of professors who only approach the teaching and scholarship of law from the theoretical side would be extremely dangerous, in my estimation. 

Over at the Legal Ethics Forum, my fellow blogger David Hricik discusses the problems inherent in legal academia's disconnection from the law.    As he notes,  professors are shut up in the ivory tower enough as it is.  To require a PhD would simply exacerbate the problem all the more.

Posted by Laura I Appleman on May 17, 2005 at 05:24 PM in Life of Law Schools | Permalink


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Joel: I don't disagree that a variety of experience is great for lawyers, or that differing backgrounds contribute a great deal in the classroom. But how does any of that depend on the third-year? Diversity of experience comes from all aspects of our lives, not just the classroom experience.

Sorry, no cites... I *should* be studying for my own finals! :) However, traditionally, legal education in America was done through apprenticeship. Law schools really started to rise in popularity in the late 1800/early 1900s. Even into the 1920s a law degree was not required to practice law in America--in fact, there are a few states where you can still gain a license to practice without a degree, if I'm not mistaken. The requirement for a four-year degree prior to law school wasn't uniformly adopted until the 1960s. And, again if I'm not mistaken, the "third-year" was a product of the Root Report from the 1920s.

That leaves a whole lot of development of American legal thinking and scholarship that was developed both outside of the law school context and without the third-year. What does that mean? I don't know. But it does mean the third year isn't exactly sacrosanct. Diversity in education doesn't really have much to do with the third year.

A more traditional graduate school model accommodates a variety of educational experience as well as differing career paths. You can study experimental physics and you can study theoretical physics. Sure, the two overlap, but they are _different_ paths of study. I see no reason why law shouldn't have the same options for students.

Posted by: Dave! | May 18, 2005 12:24:52 PM

Dave, you pulled that law review article out as a nice straw man, but it does not really enter into this discussion. Why are legal scholars treated differently? Well, the first theory is that the JD is supposed to be a terminal degree and when you are done with it you are theoretically able to practice or otherwise go forward with any type of legal career.
John, law taught in lecture format? Let the market regulate performance? You are now jumping off of a deep end to be honest. The point of the socratic method is to engage those learning law in the process and to force them to work harder at what it takes to adequately read a case and glean the relevant material. As for why we don't go back to an LL.B., because the legal community benefits from a wider range of experiences. The difference in undergraduate degrees creates a variety in law school that is not often found in other graduate programs. You get wildly different views that enhance the learning experience of all students. The entertainment contract portions of contract law get much more interesting when you have a theatre grad to talk about them. The former football player added some insight to the torts cases involving sporting events. These are the kinds of enrichments that will create a better legal profession as a whole and in the long run.
Watering down legal education will harm a great portion of America. There is a lot of talk about how it will be okay with only two years and nothing much is given up, the third year will be optional, but the reality that many people would skip the third year is being overlooked. The larger reality is that many people at law schools that are not "teaching" schools would skip it is also overlooked. We are blaming law schools for a third year that is demonized because of lazy students.

Posted by: Joel | May 18, 2005 10:03:44 AM


I agree, but why not go all the way? Have most law taught in lecture format to undergrads. Let the market sort them, train them on the job, and regulate peformance in the workforce. The best and the brightest will go back for two years of L-School. A very few will go on for doctoral degrees.

Posted by: John Steele | May 17, 2005 11:08:04 PM

And engineers *don't* touch people's lives daily? I'd rather have an undereducated lawyer than an undereducated aeronautical engineer, any day. (Again, I'm going to leave medicine out of the fray.)

Certainly, the law touches all of us; I think that is even more reason to lower the bar for studying it initially, with a two year degree. No offense to any of the professors here (or elsewhere) but law review articles rarely impact daily lives. And if you want to include exposing students to "real world" legal issues during the two year degree program, there's a very easy answer already employed by law schools and business schools alike: clinical faculty.

Why should legal *scholars* be treated differently from other academic scholars?

Posted by: Dave! | May 17, 2005 7:52:35 PM

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