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Friday, May 02, 2008

Why Is Legal Education an Advanced Degree?

I've recently been puzzling over why legal education is done as an advanced degree in the US (and a handful of other countries). There's no prerequisite body of knowledge or prerequisite approach to knowledge for law school. Nor is any particular maturity level required (as if age were ever a good proxy for maturity). I'd be curious to know how we developed the BA/BS-JD sequence in the US. Was it always like this? I'm guessing not, but maybe some legal historians can chime in. How did we end up doing legal education as an advanced degree? And do those reasons still make sense? Would a college degree in law and an apprenticeship be a better approach?

Of course, perhaps the issue isn't whether the JD should be an advanced degree, but whether any degree should be required to practice law. California and Virginia and maybe some other states don't require a law degree at all to practice. And that might be quite sensible. I think there is little particular substantive knowledge or approach to knowledge gained by going to law school that is necessary for being a good corporate attorney. Common sense is much more valuable. For certain practices, like tax or bankruptcy, a particular course sequence in law school is an important foundation, but even then, a fast learn can pick up the necessary knowledge on the job pretty fast.

But perhaps the issue is really one of whether any particular education is necessary to practice law, and by that I include the education (including self-education) necessary to pass the bar exam. How many lawyers ever have to know the elements of common law burglary (entering a dwelling, at night, etc.) or larceny for their practice? I recognize that the skills necessary to pass the bar can serve as a proxy for other abilities and that requiring bar passage is an important form of consumer protection, but is any of this a very good proxy for attorney performance? Or is the bar passage and JD requirements a way of restricting supply in the legal services market and thereby raising the price lawyers can demand (if so, shouldn't we be even more restrictive? Do we really have a perfect oligopoly going?)

Posted by Adam Levitin on May 2, 2008 at 10:09 PM in Life of Law Schools | Permalink

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I'm confident that there's a richer history that I'm unaware of, and likely a revisionist one that challenges this version, but one standard version might go as follows.

Christopher Columbus Langdell, when appointed dean at Harvard in the early 1870s, fought for a couple of decades to make legal education a post-graduate program. This attempt coincided with the professionalization of the intellectual class in this country (e.g., the beginnings of PhDs as prerequisites for academic work across all disciplines). It also fit neatly with Langdell's notion of legal science. If law were nothing but a pragmatic, functional discipline, there was little justification for having university-level legal training (and hence little justification for law professors and law school deans). Students would learn better as apprentices. If law were a science, as Langdell envisioned it, then it made sense to have a professional class of legal scientists studying the law, classifying it (like a good natural scientist post-Darwin), and coming up with its operative laws. This professional class would then teach students themselves to be good legal scientists.

Langdell succeeded in lengthening the standard course of study from about 18 months at Harvard to three years. More importantly, his vision of legal science proved the dominant one, as Harvard grads fanned out across the country and colonized faculties at other schools.

Langdell summarized his accomplishments in a speech he gave at Harvard in 1887, published at 3 Law Quarterly Rev. 123. It makes for extremely interesting reading, as it in three pages summarizes his view of law, gives his justification for post-graduate legal education, and describes legal education in terms that will be familiar to anyone who has slogged through 3 years of a JD program in the 21st century.

For articles touching on these issues, see Tom Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983), and Ted White, The Impact of Legal Science on Tort Law, 1880-1910, 78 Colum. L. Rev. 213 (1978).

Posted by: Dave Marcus | May 5, 2008 2:09:58 PM

Or is the bar passage and JD requirements a way of restricting supply in the legal services market and thereby raising the price lawyers can demand

Yes. Plus making money for the established bar examiners.

Posted by: Stuart Buck | May 3, 2008 4:06:35 PM

"Or is the bar passage and JD requirements a way of restricting supply in the legal services market and thereby raising the price lawyers can demand (if so, shouldn't we be even more restrictive?"

*ding*

Posted by: chris | May 3, 2008 1:40:05 AM

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