Sunday, July 12, 2009
Legal education faces a quandary. On the one hand, law school costs a lot of money and takes a lot of time. The tuition that can easily leave students with over $100,000 in debt is the most obvious cost of law school, but the opportunity costs of lost income over three years are also substantial. On the other hand, a reasonable case can be made that three years is not enough to provide students with a full legal education. Surprising as this may sound to students grousing about the purported uselessness of the third year of law school, the ABA Out of the Box Committee recently suggested that law school should be four years for regular division students (much to Gordon Smith's dismay). As its name suggests, the Out of the Box Committee is designed to make provocative suggestions. The Committee was cognizant of the problem of cost, but argued that three years is not sufficient time to fully prepare law students for the practice of law. What you think of the idea probably turns on what you think the purpose of law school should be. To be clear, an additional year of law school does not necessarily mean another year of doctrinal coursework. It could be argued that four years are needed to provide law students with both the doctrinal knowledge and the skills training necessary to thrive as a practicing lawyer. Think medical school, and you get the basic idea.
Even if you buy the Out of the Box Committee’s basic premise, concerns about cost make an additional year of graduate-level law school untenable. If some component of legal education could be pushed to the undergraduate level, though, we might be able to have the best of both worlds. Students already have to pay for undergraduate tuition, and if they came to graduate-level law school with some specified quantity of legal knowledge, then graduate-level law school could be devoted to more advanced topics. If a sufficient amount of legal education was achieved at the undergraduate stage, then graduate-level law school might be shortened to two years while the overall amount of legal education received by students might actually increase.
What we teach in law school can be roughly divided into two components: stuff and skills. In its current incarnation, legal education is largely focused on teaching stuff – the basic doctrinal rules, and related policy issues, of various areas of law. There is a reasonable amount of legal analytic skill that is taught in your typical casebook course, especially in the first year. But most of what we teach is stuff – basic knowledge of one sort or another. Some types of stuff are more complex than others, but most of the basics really aren’t that hard. I’m pretty confident that undergraduates would be able to handle most of the basics of property law, and of any other legal area.
If students came into graduate-level law school with a decent introduction to the law of property, then we could do so much more with them. What this more might be might vary – it could be more practice oriented, more theory oriented, or remain doctrinal, but on a deeper level. Students wouldn’t need to enter with the same knowledge base that we expect them to have at the end of the first-year course. Just a basic understanding of the basic areas of property law would suffice.
Presuming that it is desirable to shift some legal education to the undergraduate level, how do we get there? My proposal is to create an advanced placement system for law school. High school students can take advanced placement tests in a wide range of subject areas. If they score well enough, they are given college credit and can place out of some introductory college courses. The same thing could be done with legal education. Exams could be offered in a number of doctrinal areas. If students score well enough, they would be given law school credit and could place out of the introductory course in that subject (or could take an abbreviated version of that course).
One advantage of using placement exams as a vehicle is that it would let the market decide how best to promote undergraduate legal education. If the ABA approves the tests, and allows accredited law schools to give placement credit for them, then it wouldn’t matter how students are prepared for the tests. All that will matter is student performance. Most of the basics of legal subjects could be taught well on-line, or through distance learning. Kaplan, the Princeton Review, etc. might offer prep tests. So long as students display a basic level of competency, it shouldn’t matter how that competency is achieved. I would imagine (and hope) that undergraduate institutions would start to offer law majors, but students could prepare for the tests any way they like. Initially, the tests would allow some students to gain some law school credit before starting law school, making it easier for them to get a J.D. in two years. Over time, the tests might morph into law boards that all students are expected to take before admission to graduate-level law school.
Moving to this system would have advantages for everyone involved. For students, it would allow them to get the J.D. in two years. If enough material was moved to the undergraduate level, then students might end up with the equivalent of four years of graduate legal education for less money and overall time. If a lot of the basics were moved to the undergraduate level, graduate-level law school could focus on more complex and creative course offerings, better preparing students for practice. Having a part of legal education done at the undergraduate level would also lead to more people getting some legal education. Not everyone who studied law at the undergraduate level would go on to graduate law school to become a practicing lawyer. Students with some undergraduate legal education would hopefully be able to make better-informed decisions about whether to get a graduate education in law or to pursue another career. Students who decide that they want to go school late could take intensive programs like those designed for people who want to go to medical school but who have not completed the prerequisites. Or, law schools could continue to offer full programs for those students who don't have an undergraduate legal education.
An objection, which is sometimes raised about European systems that have an undergraduate component to legal education, is that students end up knowing law but nothing else. This could be called the liberal arts objection. I'm a huge fan of liberal arts education, so this objection has a lot of resonance with me. My initial response to it has a few parts. First, an undergraduate legal education doesn't have to be as doctrine-focused as current law school programs. If I was designing an undergraduate law program, I would require basic courses in logic and economics, and would highly recommend other courses in history, philosophy, and political science. Second, students can and should take courses as undergraduates outside of their major. Third, if someone was to object that it is a problem for lawyers to only know law, a logical response would be to ask what, exactly, lawyers should know in addition to law. Students come to law school with such a wide range of undergraduate (and graduate) backgrounds that most have little exposure to any given subject area.
Shifting some legal education to the undergraduate level would change existing law schools, but would not hurt them. So long as the graduate law degree – the J.D. – is the one required for practice, law schools are secure. The placement exams would give graduate law schools a much-improved data set to use for admissions decisions – performance on actual law-related standardized exams would seem to me to be the best possible predictor of law school success. (The LSAC folks shouldn’t be threatened – they’d be good candidates to administer the exams, and the LSAT wouldn't go away in any event. US News would have a new data point for rankings, and this one (unlike many of their current ones) would actually be relevant and hard to game.). Law schools might expand, becoming legal education centers providing both graduate and undergraduate offerings (alone or in joint ventures with undergraduate institutions) in law. If the J.D. program was only two years, it might become common for students to do a specialized LL.M. Law schools could compete in LL.M. specialization. If you’re thinking about going to graduate school in philosophy, you would pick Pitt over NYU if you were interested in philosophy of science, but would pick NYU over Pitt if you wanted to study moral philosophy. So, too, you might pick NYU over George Washington for an LL.M. in tax, but George Washington over NYU for an LL.M. in intellectual property.
The shift would also be good for law professors. To begin with, there would be a lot more of them if undergraduate institutions started offering programs in law. Those teaching at graduate law schools would have more freedom to be creative with their courses, and would be able to spend more time on complex issues rather than the basics. I personally would love to try teaching Property to undergraduates. I would also love the opportunity to teach more advanced Property issues to my law school students. Even with six credits to teach Property, I can only scratch the surface of most issues. If students had a basic background in, say, the law of servitudes, then I could spend more time on some important issues that I currently don't have time to cover, such as common interest community governance.
So it seems to me that moving to an advanced placement system for law school would be a win for everyone. Others probably will see drawbacks that I'm missing. If so, have at it in the comments.
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