Reducing law school from three to two years is lunacy

There is a movement to reduce law school education from three years to two years.  That is crazy.  If anything, we should extend law school for two additional years and divide that additional education into two skill tracks.  One track would be “office practice” and the other “trial practice.”   These two years would emphasize learning by doing–experience over doctrine.  The great need for legal aid could, in some small part, be addressed by such additional training.

Photo credit:  David Ortez per Creative Commons license.

Photo credit: David Ortez per Creative Commons license.

I am not insensitive to the enormous financial burdens that law students undertake.  Additionally, I am sensitive to the mounting pressure on law schools to address the financial concerns of their students while also trying to find the money to maintain credible graduate educational programs.

The foregoing said, I am far more concerned with the quality of the lawyers we turn out.  For Christ’s sake, kids right out of school are out there now charging real people real money.  The great shame of the profession and the legal academy is that we have always allowed young law school graduates to go out and practice law with virtually no experience.

The competence of young lawyers fresh out of school is middling at best, and, frequently, abysmal.  It will be far worse if the training is reduced.  Truly proficient lawyers should be our goal.  If that is the goal, more rather than less time should be required.

RGK

6 responses

  1. Judge:

    I respectfully disagree. It’s not about the length. It’s about what you do with it. I graduated in 2010 and my 2L and 3L years were filled with all sorts of classes (strike that; all sorts of “nonsense”! 🙂 ) that had absolutely nothing to do with practice. I took classes in comparative law, theory of law and economics, law and empirical methods, applications of law to economic development, theory of global antitrust, and international trade policy.

    I took these by choice. I (greatly) enjoyed the material. The only classes I had that were of any use after graduation were evidence, trial advocacy, and federal courts, and what I got out of them was only the ability to recognize doctrines (not that I could recall anything substantive.)

    Law school tries to be all things. They try to train lawyers, but also policymakers, academics, or businesspeople. Let’s assume my past three years (one-and-a-half of which were spent in biglaw and the other one-and-a-half as a clerk) have been, as you describe it, my “three years of practicum”.

    Do I make a good lawyer? I don’t think so. (My trial ad prof would say I would never make a good trial lawyer. I don’t disagree….) Do I make a good clerk for a district judge? I hope so. I think some might agree I have been a better clerk than a student who has had a lot of clinical experience, perhaps because I think about broadly reasoning from analogies and first principles, rather than applying cases. (And before you say that trial judges are just umpires, I’m positive you’ve seen any number of fact patterns in dispositive motions that don’t fit squarely with any precedent.)

    If I had been required to spend those three years in legal aid, in the courtroom… I still don’t think I would have been a good lawyer. I likely would have quit and left the profession altogether.

    So I agree with your idea of tracks — but slightly different. There could be a JD (Practice/Trial Litigation), JD (Practice/Business), JD (Practice/Appellate), JD (Policy), JD (Academia — which is kind of like a JSD) — and more. It would be like after completing a medical residency (and I specifically note residency and not medical school), you are either on a surgery track or an internal medicine track.

    You would never want your allergist doing your heart surgery, just like you wouldn’t want an academician arguing in front of a jury, or your trial lawyer writing a book on comparative Hohfeldian analysis. I imagine the competence level would be approximately similar to that of your freshly-scrubbed law student.

    Just my thoughts from the other side.

    JRL

  2. JRL,

    Thanks for your very thoughtful comments. You and I agree on at least two things. First, there is a lot to learn. Second, the idea of tracks could be implemented in a manner that would allow a law student to learn very specific competencies. The foregoing said, if we continue to license lawyers to do all things for all clients, I continue to think more time in training, rather than less, tends (but certainly does not assure) better lawyers. Speaking of doctors, when is the last time you paid a doctor who introduced his treatment of you this way: “Hey,Bud, you’re my first patient. Hold on tight!”

    All the best.

    RGK

    PS For a very recent post on Hohfeldian analysis, see Nikolai Lazarev, Hohfeld’s Analysis of Rights: An Essential Approach to a Conceptual and Practical Understanding of the Nature of Rights,Murdoch University Electronic Journal of Law (May 28, 2013),available at http://lawschoolnerds.blogspot.com/2013/05/nature-of-rights-adapted.html. Now, I think I will put a gun in my mouth.

  3. Judge:

    The question though, I suppose, is whether the hands-on post-education apprenticeship model is more efficient or provides better results than learning it in school (where, incidentally, one has to pay for it, rather than being paid for it, like in medicine and many other professional occupations.) If I recall correctly, doctors can “practice” straight out of medical school, but they just do it much less frequently than lawyers. (Perhaps because ineffective assistance has a much higher bar than med mal…?)

    Anyhow, back to the REAL issue at hand. I should have known better than to throw Hohfeldian analysis into the mix. I will readily admit that all I had previously known about it was 10 minutes in 1L Property. After skimming that blog post, I find myself rather more enlightened, although with much more I may be forced to follow your lead.

    JRL

    PS The fiancée (budding cardiologist) and brother-in-law (orthopedic surgeon) both explain it thus: The night before you are scheduled to do a procedure you have never done before, pour yourself a drink, sit down with the manual, read it thoroughly, and then watch a bunch of YouTube videos. When you see the patient, put a smile on your face and act as if you know what you’re doing.

    On a totally unrelated note, I’m told that patients very rarely have judges observing.

  4. JRL,

    You are a good sport, with a wry sense of humor, and your points about law school insightful. I am certainly not opposed to granting law degrees that are limited in scope, sort of like the Brits. I really worry, however, about reducing training for those people who will be licensed to practice more generally.

    As a beginning lawyer (after being a law clerk for two years) in a small country practice, I remember how lost I felt and the terror that infused every waking hour. In our practice, we took everything from murder cases to like-kind exchanges under the Internal Revenue Code. My law partner told me that it would take about five years to feel comfortable with the law, and he was right. He was also right to say that after five years, the people would become the challenge. He said that would be the case the rest of my life. He was right about that too.

    Anyway, I appreciate your engagement. You remind me of my law clerks–gently and humorously talking an old guy off the ledge.

    All the best.

    RGK

  5. Oh boy. I agree with JRL. Apart from the criminal clinics (which I absolutely loved), I took great courses like “law and literature”, “law and literature of crime” “admiralty” and I can’t remember what else.

    I really don’t want young, inexperienced attorneys handling legal representation of the poor and I certainly don’t want them doing it after just two years’ training, whatever that training might be. I do think an articleship program like the Commonwealth has would be greatly beneficial.

  6. Gideon,

    My concern is that we have young and inexperienced lawyers representing the poor now. Do you think those folks would be better served if their lawyer spent less time in law school? I don’t.

    Right now, young lawyers get most of their skill training in a haphazard manner. I simply can’t fathom why we would reduce what little training they do get in the law schools. I certainly agree with you and others that it is time to (1) make the law school curriculum more focused on skills training for those who desire to practice law and (2) offer alternative degrees (but not law licenses) to people who don’t want to practice law.

    Articleships (in accounting) or internships (in medicine) are good models, but not likely to work as a practical matter because of the sheer number of law students and the need for administrative oversight. The law schools would be better suited, in my judgment, to provide the administrative oversight and clinical training, particularly given the fact that lengthening the required period of study would also provide a new tuition income stream.

    Anyway, I think you and I are are closer to agreement than you might think. In any event, I appreciate your comments.

    All the best.

    RGK

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