Thursday, January 05, 2006

Is the Third Year of Law School a Waste of Time and Money?

Does the third year of law school add all that much? A recent post by Denise Howell on Between Lawyers says this:

The 2005 Annual Report from the Law School Survey of Student Engagement, which "gives schools an idea of how well students are learning and what they put into and get out of their law school experience" (and is the basis for the article Dennis [Kennedy] linked earlier), is here. (Via Genie Tyburskie) "[T]hird-year students look similar to first- and second-year students in areas such as critical thinking, effective writing, and work-related knowledge or skills." If you were to survey practicing lawyers, you'd find resounding agreement on two points: very little about law school prepared them for for the bar exam, and even less prepared them for the actual practice of law. So why not just axe the third year? (My response: 'cause when else for the ensuing 40-odd years do former law students get to goof off?)

Check out her post here. There are some very good links and some comments, including one by yours truly. In particular, look at Dennis Kennedy's related post on the same site.

Denise's answer is appropriately tongue in cheek. But is the unstated suggestion of this dialogue that a 2-year law school would suffice? Yes, I think it is. Is that suggestion right? Not to me.

In a field that is literally splintering and hyper-specializing, the third year of law school allows people to take courses in specific areas. If I were the U.S. Law School Czar, I would think very hard about actually adding a FOURTH year. (Of course, I might feel differently if I had not already graduated.)

What is the number one complaint practitioners have about law schools? That "law schools don't prepare students for the practice of law." If I had a dime for every time I've heard that one I'd be rich and living on a beach somewhere.

So what is the answer to that problem? Easy: to teach people not just how to think like lawyers, but also how to act like lawyers.

The question really boils down to this: what are law schools supposed to be? Traditional graduate schools, or trade schools? Should they focus on theory and doctrine? Or on practical instruction, such as how to write and file a motion, maintain files, bring in a new client, etc.? The easy (and right) answer is "both of the above." Law schools are a hybrid institution. You learn the theories underlying a rich discipline, but you also really should be learning the key basics and tricks of the trade. And you can't do that in two years. We don't really do it well enough in three.

So, while law schools are not just supposed to train technical monkeys, they do a great disservice if they do not give their graduates the rudimentary practice skills to succeed. And that's where the third year of law school should come in. (And my dream fourth year, which might be part internship with a firm, as law schools in some countries like Canada do it).

The point is that if students have to learn practical skills solely on the job, that has enormously negative effects. First, it undercuts the validity of law schools and makes them little more than a 3-year barrier to entry to the profession. And second, it hurts the graduates. And aren't they the ones we are supposed to be serving in the first place?


JMG said...

The point is not whether the third year should be required, it's whether the first two should be.

The only state I am aware of where there is a rational, disinterested basis for requiring law school is Wisconsin, where graduation from one of the two schools suffices for admission to the state bar (no bar exam).

Law school should be part of an either/or deal; either you go to an accredited law school and thereby satisfy the major part of the requirements for admission to the bar, or you satisfy that same requirement by passing a bar exam (whether you went to an unaccredited school or not).

There are plenty of smart, good older people (often paralegals) who could decide to become lawyers by taking the bar exam. American society would greatly benefit by having these older, more mature and experienced people enter the profession that thrusts so much responsibility on people. With our extended lifespans, we could see a renaissance in the law, as the profession becomes infiltrated with people who already have an identity, rather than kids who become gunslingers and Rambos because they don't know any better (and the massive law school debt they carry means that only money has meaning to them).

Of course, the profession would have to be willing to put service to society above its own interests, which--as the gross unment need for affordable legal services shows--hasn't happened thus far.

The monopoly law schools have gained over entry to the profession is truly a monument to self-interest and a testament to Shaw's observation about each profession being a conspiracy against the laity.

Gregory W. Bowman said...

What a great comment! Thanks for sharing your hearfelt thoughts. I agree with a lot of what you say.

For some reason, the past 3 decades have seen most states do away with automatic bar admission for students who go to state law schools. Part of that may be the recent proliferation of new (and sometimes private) law schools, but to me that doesn't fully explain it. If a law school adequately prepares you to practice (and flunks people out if they don't cut it), then why do we need the bar? Or maybe that's the answer--states didn't think schools were doing their jobs.

Yet there is a lot of discussion in the legal academy right now about how poorly the bar prepares you for practice. If law school is bad at it (which it is in many ways), then the bar is far, far worse. The bar teaches you to memorize rules, not make policy arguments, write a brief, etc.

So personally, I would not mind seeing the bar exam go away (I certainly gained little from it), but law schools? No, we do need them. They just need to do a better job. And accreditation plays an important role in making sure there is some quality involved. It's not a perfect process, but without it schools would be sorely tempted to become diploma mills. That of course would defeat the purpose of education.

Last point: you are absolutely, positively right in saying that law schools are a barrier to entry. And for older students the bar is higher. Yet law schools benefit enormously from non-traditional, older students in a variety of ways (diversity, experience, positive influence on younger students, etc.), and in fact most laws schools over the past decade have been striving to increase enrollment of older students. So maybe there's some reason for hope.

jmg said...

On what do you base your claim that we need law schools? None of the Framers, many of whom were lawyers, went to law school. Lincoln did not go to law school, nor did Darrow.

The ABA insists that schools use classes (measured by minutes of "instruction"), which are the most deadly useless method of instruction known, but very profitable (100 students paying tuition, one attorney -- usually one who has never practice law -- up front).

The ABA refuses to allow students to challenge course exams (i.e., test out of classes), and refuses to see distance learning programs as anything other than a threat to their rice bowl. (Which, of course, it is. Because law school instruction is intentionally crippled, expensive, and inefficient, so that there will not be too many people able to do it.)

Look, if law school is so valuable, let non-law grads take the bar and practice without the JD. Lawyers with the JD can explain how the JD adds value, and the millions of Americans now totally unable to get legal help will have a much larger pool of people they can go to for their legal problems, and the market will tell us whether or not the JD actually adds value.

Gregory W. Bowman said...

There is nothing like a good debate! Your comments are so thought provoking that I feel compelled to add a separate post on the subject. So stay tuned and look for it.

Thanks for contributing to the discussion of this very important topic. And thanks for reading my blog.

biff said...

Law schools are necessary. But only because they are a part of the screening system that separats smart people from the rest, and the smartest people from the smart. Without the schools, firms will only be relying on LSAT and the bar exams to find talented people.

I think we should do away with the third year, at least in the way it's being taught now. We should have something like the residency program that doctors have. Students should be able to graduate and go into practice, or pick a firm to learn their specialty for reduced pay.

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