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Tuesday, May 17, 2005
What Is Law School All About? Thoughts on the Third Year of Law School
Laura Appleman has been posting some provocative recent posts here on PrawfsBlawg (here and here) about whether there should be a third year to law school. The answer to this question depends upon what we believe law school should be all about.
I believe that training students with skills to practice law is just one aspect of law teaching. Lawyering skills might make students adept within the current legal system, but they might not help make students have a satisfying careers or achieve in life something they consider to be meaningful or figure out a way to change the legal system. Although lawyering skills are certainly very important to learn, there can and should be much more to a legal education.
The great virtue of law school is that it is one of the few times in people's legal careers where they can think more broadly about the law and what they are doing; they can think about why the law is the way it is; how the law might be changed; and how the law affects society. In other words, law school is a time to think about more abstract questions, which is harder to do when one is busy with the day-to-day hectic pace of practice. The best way to learn about practicing law is to do it, which is why clinics are an indispensable part of legal education. But the classroom studies can provide another dimension, a focus on the big questions, a way to learn to think in new ways, and to explore various issues and topics that one might not encounter in one’s everyday practice.
In a two-year legal education, much of this exploratory time might be lost. It might limit students’ exposure to new and interesting topics that they might not ordinarily explore. It would make law school more of a means to an end – passing through quickly to get a degree.
The practice of law has a lot to benefit from being seen through a broader and more critical lens. When folks talk about being “practical” in a law school education, they typically mean learning various skills that will improve students’ ability to win cases or do other legal tasks. But a law school education can be practical in another way that it often isn’t – it can invite thinking about the way law is practiced, how this affects the lives of those practicing it, and how it affects society and the parties involved in the legal system. This is practical too. Indeed, these issues are often not explored sufficiently, and students leave law school and head off into jobs where many will wind up unhappy. Dissatisfaction rates among lawyers are very high. There are few professions that provide the level of empowerment and potential that law can provide. It should be shocking that with these attributes, so many lawyers are unhappy and unfulfilled. Why does this have to happen? How can one achieve social and political change through law? The practical elements to these questions are often not taught enough. As professors, we often discuss in class how the law should be, but we rarely discuss practically how one might work to change the law or the legal system.
I agree that currently, the third year of law school is often unproductive for many students. But it need not be this way. Perhaps we should spend some time in our training of law students to think about ways that the practice of law can be transformed into a rewarding and fulfilling experience for more lawyers and how it might better benefit society. Perhaps this is the practical dimension that the third year of law school could provide.
Posted by Daniel Solove on May 17, 2005 at 11:02 PM in Daniel Solove, Life of Law Schools | Permalink
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I wrote on this subject in 1996 ...
and
http://adrr.com/law0/oth5h.htm
Completely different approach, but I did advocate a 2 year degree for a number of purposes and real education for the non-two-year degree programs.
Posted by: Stephen M (Ethesis) | May 19, 2005 10:47:24 PM
Dave:
My point is that there are a lot of more direct and better ways to enable students to choose non-big-firm employment -- loans forgiveness programs (which I think should definitely be expanded) being only the most obvious example -- that don't require dropping the third year. (And if the law schools can afford the revenue hit from dumping the third year, they could afford to spend a similar amount of money on loan forgiveness programs.) Dumping the third year would be a grossly indirect method of saving money for all students when all we really care about are those students (a) who don't have independent means thus need to take out loans and (b) do not plan/are not able to get high-paying work on graduation. Why on earth not just subsidize those students directly, instead of taking a meat-axe to the educational programs?
As for the federal loans, the 18k (18.5k?) a year available on staffords alone is enough to pay state university tuition plus some expenses. (Then there's perkins loans, etc. etc.) For those who would prefer to attend higher-ranked private universities (if they're not lucky enough to live in Michican, Virginia, California, etc.), the high-ranking schools are more likely to be the wealthy, large-endowment ones, and hence the ones who can afford and often do give out their own loans, grants, and some loan forgivness.
(As for my personal far removed status, I came from a lower-middle class single parent family, graduated law school with loans in the high five-figures and went off to do low-paying public interest work. So believe me, I understand. I had/have the good fortune of being the beneficiary of an excellent loan forgiveness program, and I think those programs can and must be expanded. So not only am I not far removed from the financial realities facing many students today, I'm personally aware of them.)
Posted by: Paul Gowder | May 19, 2005 5:59:09 PM
Paul: I think you're far removed from the financial realities facing many students today. Loan forgiveness/repayment programs are *few and far between* and I personally know several people who would like to do more public service law, but simply cannot afford it. When I applied to law schools, the federal loans were not enough to cover the tuition at a *single* one of the schools.
Perhaps people go into corporate law so much because it pays well--because they need to repay those loans. I think you need to take a close look at the tail that wags the dog.
Posted by: Dave! | May 19, 2005 2:25:19 PM
Sure it is. If you reduce the costs of entering a profession, you increase the number of people in it. It's easy to get into law school in California (because of all the non-ABA schools), so there's a lot of lawyers in California. It's exactly the same issue.
Also, in light of the fact that law is a relatively high-income profession (and, at the high end, a very-high-income profession), and that federally subsidized student loans are readily available, I have very little pity for most law students and prospective law students -- particularly for those who are planning to go to corporate practices. They are well able to pay for three years of law school. For those who are planning to go into less renumerative areas, there are better ways (such as loan forgiveness programs, which are increasingly common) to ensure that they'll be able to confidently pay for law school than to sabotage the educational experience.
Posted by: Paul Gowder | May 19, 2005 11:28:53 AM
Paul: Perhaps because mere ability to pay a higher cost is a poor means of quality control for attorneys. If only those with access to exorbitant sums of money (or credit) can become lawyers, do you really think that is going to create a better quality of lawyer?!
The issue of "too many lawyers" isn't the same as curbing the costs of a legal education.
Posted by: Dave! | May 19, 2005 1:25:59 AM
(public service closing of bold tag)
Posted by: Paul Gowder | May 18, 2005 9:38:20 PM
Whyyyyyyy do we want to lower the costs of entering a market where there's already an oversupply?? (Or do you disagree that there are too many lawyers?)
Posted by: Paul Gowder | May 18, 2005 9:37:48 PM
I agree with Dave! and have been trying to make similar points. We need a second, less expensive way for people to become lawyers. The LLB at your local state university is the ideal vehicle. The students with more capital and drive will still pursue the BA/BS plus three years of L-school route. A very few academically minded will pursue their doctorates.
If you trace the history of lawyering, a fateful decision was made in the 1920s when two very different proposals were floated: have alternate paths to the law or have a single uniform path based upon the graduate school at the university model. With the run-up of billable hours and cost of tuition we can see the flaws of adopting just the latter approach. We now have too many people and institutions making money off the increasing debt of the law students.
Posted by: John Steele | May 18, 2005 6:22:29 PM
I think that the current track to get to legal academia -- the J.D. plus clerkship/a few years of firm/government experience plus published articles -- is optimal. This track gives legal scholars 3 years of formal legal education and a significant amount of practical experience. Some people would rather turn law profs into glorified, higher-paid philosophers and view that practical experience as unnecessary. I don't.
(But, as I noted before, I'm not sure that the 3-year J.D. model is optimal for practicing lawyers.)
Posted by: Jeff V. | May 18, 2005 5:49:49 PM
Joel: I don't cheapen the legal profession at all. I advocate a LLB for people who want to get out and practice *the vast majority* of legal issues: real estate closings, leases, divorces, car accidents, etc. There is no reason someone couldn't practice with an LLB, learning more about an area of practice on the job under the tutelage of an experienced attorney. In fact, that's where most lawyers today learn real practical skills anyway. First year associates don't argue before the supreme court; they write memos to other lawyers inside their firm--who then correct them and make them re-write it.
Those who really want to advance or specialize, would return (or go straight into) an LLM program. Under my proposal, skilled specialists end up with *more* actual classroom time in law than the grad of a three year program: they would have the two years of an LLB and the additional 2-3 years of the LLM. All without forcing those who are content to practice the small stuff to waste money that wouldn't really benefit the things they actually do.
If anything, I think you cheapen the legal profession by continuing to cling to the notion that three years is enough to *really* learn about legal theory or legal scholarship. You seem to imply that there's no value in a *real* graduate education in law. Again, perhaps I'm jaded, but I would wager that the average English Lit MA knows more about English Lit than the average J.D., even with his three years, knows about legal theory.
My point is that the current three-year JD tries to have it both ways: it tries to be a system for providing lawyers with practical lawyering skills while also instilling some modicum of legal scholarship. Frankly, I think it does (on the whole) a poor job at both. A more traditional educational model would probably meet those goals and actually accomplish what you claim to want much better. But obviously, we disagree on that point.
Posted by: Dave! | May 18, 2005 5:10:10 PM
I must have had a completely foreign law school experience from the rest of these posters because I am just befuddled by these comments. I had bar prep courses spread through all three of my years of law school, I took jurisprudential heavy courses my second and third years, and had a lot more than bluster as my third year of law school.
Dave, you cheapen the nature of the legal profession with your proposal. Frankly, twenty-two year olds are rarely ready to be in the real world. The three years post B.A./B/S/ law school curriculum allows for a certain level of maturity to be reached both in psychosocial development as well as in analytic skills.
Why is law different has been a recurring theme of those who think that we should scrap the current system. The answer nobody has given yet: We are a nation of laws; we exist under the rule of law. Law is the intersection of our lives and society and it is what was the defining point of this nation when it was founded. That is why it is different.
Posted by: Joel | May 18, 2005 2:29:27 PM
If you have not learned how to think about things philosophically in undergrad, you are a stupid frat boy who has no place in law school.
Posted by: Roger | May 18, 2005 1:45:43 PM
A person who wants to "think more broadly about the law and what they are doing" can do so inexpensively. Most of what I've learned I've learned from books, or professional philosophers. Currently, a regulatory scheme requires a person to spend an extra year in law school. In a vacuum, that extra year is probably a good thing.
If we could, like Gandolf did in one of the Lord of the Rings moves, go to a special place to learn things outside of time, that extra year should be required. But our time and money are scarce.
So I think the issue is whether whatever benefit talking about philosophy-like topics with non-Ph.Ds outweighs the considerable expense of a third year of law school. I think the answer is, no.
I could take the 10K a good state law school would charge (or, even better, the 30K a private law school charges for tuition) and buy a lot of books. I'd learn more reading those books than spending my time and money on a third year of law school. Indeed, I could allocate that money to travel to philosophical conferences.
Or, instead of spending a year in law school where J.D.s would (try) to teach me philosophy, I could walk over to the school's philosophy department.
Instead, the law (ala the ABA and state bars) requires someone to spend that third year in law school, inefficiently allocating considerable time and money for a hand full of philosophy-like courses taught by J.D.s.
Posted by: 42 USC 1983 | May 18, 2005 1:10:59 PM
Lowering the cost would also open doors for those students who want to practice public interest law. Currently, saddling students with that extra third-year of debt--when they don't have any aspirations to scholarship--forces many to sideline their noble causes in favor of their immediate needs.
A more traditional (educationally speaking) model for legal education seems to offer accommodation to all:
LLB - Equivalent to a BA/BS... doesn't require a four-year degree, but would allow those who want to practice law the means.
LLM - Would require either an LLB or a BA/BS. This would allow the "next level" of training for job advancement and/or knowledge advancement. *Many* practicing attorneys would still go this route because they would reap the benefits of higher pay, greater specialization, etc.
PhD - For the academics. Enforces the same rigorous scholarship of other academic fields, etc.
That would seem to preserve the ability for some students to start working in the legal field with competent legal training, still allow more well-rounded training for most attorneys, and provide rigorous academic training for our scholars.
Posted by: Dave! | May 18, 2005 12:44:02 PM
I like Jeff's emphasis on cost and choice. The cost of law school has been rising, leading to average $70K in debt and a resulting commitment by many students to higher paying jobs they don't like. Bringing back the LLB at state schools would allow students to enter law for much less money, would facilitate provision of lower cost legal services, and would permit the ladder climbers to pursue an additional two/three years of law school, or even a doctoral program, if it made sense for them. Students could also take an undergrad degree in non-law and then go to law school for three years. I imagine that the elite students would take that route. We are now milking the students for cash to such a degree that we ought to offer them an alternate, lower-cost path.
Posted by: John Steele | May 18, 2005 11:16:29 AM
I agree that the third year is very valuable. And I also think that Jeff has a good point.
At Columbia (and at many other schools, I'm sure), students can spend a good deal of their third year in various externships that are like a law apprenticeship of sorts. (People can extern as 2L's as well, but from what I saw it wasn't nearly as common).
That may answer the critique that people are done learning gauzy theory and want to get their hands dirty with some legal practice. Of course, if they're paying over 100k for that experience, the argument is a little less powerful.
Posted by: Kaimi | May 18, 2005 11:01:14 AM
While the intangible benefits that you detail are valuable, I think it is worthwhile to ask: how valuable are they? Because that one year of education costs between $30K (at state schools) and $65K (at NYU/Columbia). When you add that cost to the opportunity cost of foregoing a year of employment (often $125K), you get a total cost of up to $190K.
Are the intangible benefits that you list worth that cost to students? I think this is a question that individual students must answer. For me personally, because I want to be a law professor, the elimination of the third year would likely mean that I would have to get a much more costly degree (either the PhD or JSD or some variation). For me, then, it's worth it. But for many others, i doubt that it is.
Posted by: Jeff V. | May 18, 2005 10:23:12 AM
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