Should Law School Be Two Years Long?
Is law school too long? It seems that just about every shiftless 3L thinks so. Also, the idea has gained increasing traction in the media, with pundits calling to reduce the serving size of law school as a means of reining in the cost of a degree. A recent op-ed opinion by Daniel Rodriguez and Samuel Estreicher in the Times argues that 3L should be optional under most circumstances.
This would drive down cost and also has the hypothesized advantage of allowing people to enter the legal profession at a lower price tag, increasing the availability of legal assistance to the poorer strata.
The cost argument certainly resonates with many grads including myself who might fantasize heavily about cutting a third off our loan balance. I would venture a guess that the majority of students paying their own way to a law degree would opt out of the 3rd year if possible (please feel free to disagree with me in the comments). The question really is whether there is some countervailing reasons why we should force-feed students for a third year.
The Value of Interdisciplinary Education
Martha Nussbaum, Professor at University of Chicago recently joined this debate, opining that eliminating 3L would be a harmful retreat back towards the model of law study that preexisted modern legal education, a model in which lawyers received only practical training. The danger as Nussbaum sees it is that lawyers not equipped with the vision learned through interdisciplinary instruction will simply end up as “tools in the hands of powerful interests.”
Critics might say that this kind of hyperbole obscures the truth that nothing significant is being lost beyond forcing some already over schooled adults to join the working world a year earlier. However, Nussbaum sees the benefit to society of a third year for lawyers as being substantial and concretely demonstrable. She does not imply that any individual student should be expected to go out the handle all or even several of the many ills they encounter in society. Rather she lists specific things that a law student might learn of which they would thenceforth be hyper aware, making them more likely to engage the phenomenon intelligently and critically should they encounter it in practice: “Another student might select Public Choice with a leading legal economist, learning how interest groups interact and how attractive schemes are often derailed by paradoxical and counterproductive interactions of interests that economists have studied in depth. Such a student would have tools for thinking critically about the legislative process and interest-group advocacy.” (Source)
I am such a student who took Public Choice with Saul Levmore at University of Chicago. While I myself am unlikely to get involved in interest group politics, I promise that someone (probably several people) who passed through Levmore’s Public Choice class will and I’m glad they learned that material. Possible connections such as these are numerous and varied, but they drop by a third or more so soon as you chop off 3L year. As Nussbaum points out, students often take electives aligned with their career choices, so the course taken in school tends to touch a students path in law oftener than not. Remove the third year and you remove the time where students do the most self-directed learning in their areas of interest.
Nussbaum is ultimately just defending the notion that what you learn in school matters, and that more academic inquiry holds a significant marginal benefit in promoting a healthy society. However this may yet be compatible with Rodriguez and Estreicher’s notion of schools “earning” the right to charge for a third year: students who value the experience of the third year and are most likely to benefit themselves and society by pursuing it could still be enticed to do the third year.
The problem is the possibility of creating two classes of lawyers- 3 years, and 2 years- thinkers, and doers. If we do in fact need thinkers, the other problem is that allowing the doers to opt-out early means they are no longer cross-subsidizing the costs of producing the thinkers. No doubt Nussbaum argues in part for the survival of her species.
The Law School Cost Issue
The two-year program is such an attractive option right now because it looks like the most expedient means of taming the cost beast. It is not fixing the native defects causing the problem behavior though; It is more akin to just chopping the animal’s head off. Nussbaum argues in her piece that there are other ways to handle the cost problem. She suggests a system of financial aid at robust as that in place for undergraduate education. Though oft criticized, this regime is very effective at measuring students’ ability to pay and ensuring that everyone bears their fair share of the cost of higher education should they choose to access it.
The media however is quick to point out that the greater problem is not who pays for these costs but that they are so high to begin with. Well-known commentator Paul Campos of University of Michigan Law School compares it to the inquiry in as to why health care costs are so high: “This is same question that ought to be asked of the many law school apologists who treat the increase in the cost of legal education as something akin to a law of thermodynamics, as opposed to a fabulously successful exercise in rent-seeking by people who have captured a regulatory process.” (source)
It is well known for example that many law schools have to disgorge a huge proportion of their profits to the universities housing them, so as to bear up more expensive areas of education that run at a net loss. This 2011 Times piece covered the absurdities of market for legal education in a time of downturn- Law School Economics: Ka-Ching! Two years further along in to a flagging legal economy and very little has changed. If the movers of this business can’t take more substantial steps to address the underlying problem, they should not be surprised if legislation comes with more drastic solutions, such as allowing students to take the bar after only two year’s legal education.
More Lawyers for the Poor?
I am highly critical of Rodriguez and Estreicher’s idea that two year programs would significantly improve the availability of cheaper legal services for the poor. Part of the theory is that there are many people wanting to do such work who cannot because they need more lucrative jobs to service their debt.
Lucrative jobs are currently scarce, which should already have the effect of driving people in to less lucrative practice regardless of their debt load. Income Based Repayment and schools’ loan repayment programs also make this type of work an option for more people now even with heavy debt. Yet, public interest jobs and low-end legal jobs are in short supply already, with the amount of available lawyers far outstripping economic demand for such services (that is, demand by people willing to pay for it). If creating two year programs ended up creating more lawyers, the likely effect is just more jobless lawyers, not more public interest lawyers or lawyers providing low-cost legal services.
This is likely to hold true even in economic boom times given the tremendous surplus of lawyers in the country.
The Future of The 3 Year Program
For now, we will watch programs like this already in existence with a keen interest. Northwestern already runs a two year program though it requires the same credit hours as the traditional JD. NYU too is shaking up it’s third year curriculum, allowing students to go in to apprenticeships or do more rigorous study of an area of specialization.
The high cost of law school will continue to nurture a demand for two-year programs and reduced cost programs involving 3rd year apprenticeships. Wherever you assign the blame for spiraling law school costs, the unsurprising result is that law students are left feeling that they are being shaken down to pay for what is essentially a year of electives. If this 3rd year indeed does provide a substantial benefit to society or to lawyers as a group, we need to consider what must be done to make it a palatable proposition for the individual students bearing the cost.
If you have opinions of your own please share them in the comments thread. Would you have preferred 2 years or would you maintain the status quo? Let us know.