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Monday, March 12, 2018

Legal Ed's Futures: No. 14

Modest Proposal #1

My first couple of posts have been about how we’re doing things at my school to deal with innovation and technology. I want to shift the focus and start to address the observation I made in my first post about how the institutional form of the law school is a path dependent accident. Specifically, I want to start looking at the structural inefficiencies of law schools, and how the path dependency has led to a mismatch between the social need for legal knowledge and the way we deliver it.

I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.

Modest proposal #1:

A smart provost at a college/university that doesn’t have a law school should propose to the ABA that their university should be allowed to offer a Bachelor of Laws (LLB) leading to the practice of law. [1]

This idea seems so obvious, I feel that there must be a slew of reasons why it isn’t being done all across the States. The JD is a relatively recent phenomenon (https://asklib.law.harvard.edu/faq/115308) and I seem to recall reading that the main reason for the shift from the LLB to the JD in the late sixties was that entry in a grad degree guaranteed a Vietnam War draft deferral. My recollection here may well be wrong—I’m traveling at the moment, and don’t have access to the work I recall reading it in. Even if I’m wrong, it doesn’t change the fundamental point that although the regulators/accreditors may currently require a JD to be bar-eligible, there are good reasons to think that now may be the time to consider reintroducing the LLB to US legal education.

First off, the ABA/AALS/State Bar Associations are rightly concerned about the cost of law degrees, and they need to be seen to be doing something here. The fundamental problem with the JD degree isn’t (I think) the sticker cost, or the cost of delivery, or even its relevance to the legal service market—it’s the fact that it adds three unnecessary years to the value proposition for the higher educational journey of a law grad. It generally takes a minimum of seven years of instruction to be eligible to sit the bar exam, of which four years is utterly unrelated to law. It’s great that college grads with a BA in poly sci or economics or a BS majoring in biology have other skills and knowledge, and certainly it’s true that the college experience is a worthwhile rite of generational passage. But in an era when law grads can expect to carry anything from $100k to $300k in debt, we clearly need a better answer than “well, those four years of college weren’t a complete waste of time, Jenny did learn about sunk costs...”

The second reason that I think that this can work, is that it’s been working for ages in other jurisdictions. Essentially every other common law country makes do with the LLB, and these countries seem to have pretty decent legal systems and functional legal education systems. Places like South Africa, Hong Kong, Singapore, Malaysia, and Australia only require students to graduate with a 4 year LLB from an accredited school, before they can undertake the local equivalent of the bar exam. The UK is even more permissive, although its approach is too complicated to explain here. Australian law schools have, over the last ten years, introduced the JD, and begun to charge US prices for the privilege. But this is just because of the peculiar funding system for higher ed in Australia, which means that the schools with JDs can charge three times as much for essentially the same degree as the LLB.

Introducing an undergraduate law degree would cut three years of tuition off the cost of becoming a lawyer, without (it seems to me) affecting in any way the quality of lawyers it graduated or the integrity of the legal profession. Three times the average annual cost of college is a pretty significant amount of money that grads would save. We could expect a range of useful flow-on effects. Numerous underprivileged students to consider law school when they otherwise would dismiss the thought. With lower college/law school loan repayments, the cost of delivery of some legal services could well come down because grads wouldn’t be loading in their loan costs into their client bills . Etc etc.

Of course, in this era of closing law schools it would be a brave provost who suggests opening such a radical law school (or any law school). And there is still the small matter of the regulators like the ABA and AALS, who are going to be pretty seriously hard to convince to this way of thinking. But, actually, I think that these two problems are actually the best reasons for trying this. Disrupting the current status quo in US schools would be really easy, and the new program would be able to grab market share much, much faster than if the legal education system were functioning well. And there is some evidence that some regulators would be open to this, as we are already seeing a number of law schools getting ABA variances for things that would have been inconceivable just a few years ago.

This entry is already too long, so I’ll outline my next modest proposal in another post…


Dan Hunter (Swinburne, Australia)


[1] I suggest that this should happen at a university that doesn’t have a law school because this proposal is almost impossible to imagine at a university with a law school that offers the JD. The channel conflict and professorial agitation at an existing law school would almost certainly make this a non-starter.

Posted by Dan Rodriguez on March 12, 2018 at 08:56 AM | Permalink


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