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Sunday, July 12, 2009

Advanced Placement for Law Schools

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.

Ben Barros

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» Advanced Law School Placement from Chuck Newton
What a cool idea. D. Benjamin Barros, an professor at Widener Law, on his Property Prof Blog, advanced the proposition of teaching basic doctrinal law courses at the undergraduate level and that law students then be allowed to place out of these course... [Read More]

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Will law school get shorter, longer, or disappear altogether? Some of these on-going discussions about the future of law schools have transpired over the course of the last few weeks, meaning many readers will have seen at least some of... [Read More]

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Comments

As someone who regularly teaches undergraduates let me put in a plug for this idea. There is nothing about legal doctrine that makes it less fit for undergraduate study than Shakespeare's sonnets or Thomas Hobbes' Leviathan. Moreover, the large size lecture format that ends up dominating first year and major doctrinal second and third year courses in law schools today, fits better pedagogically with the experience of undergraduate education (especially lower division classes) and always seems a kind of abrupt regression after the usually smaller and more participatory classes of the final two years of undergraduate study. Undergraduate students are also more fun to teach in many regards (far less tired of education and pissy with anxiety about the job and marital markets). Assuming law schools then offered these students a rich mix of clinics, advanced courses, and collaborative research opportunities with faculty, they might find the three more years of education less demoralizing and more useful.

Posted by: Jonathan Simon | Jul 13, 2009 1:48:52 PM

Ben,

Why AP? Why not just REQUIRE students take certain courses to get into law school?

That would be most analogous to the med school model, where to be eligible, a student must take a significant number of substantive courses. For example, most medical schools require applicants to have completed at least one full year of each of Biology and Physics and two full years of Chemistry (including Organic Chemistry), together with associated lab work. Compare law school, where many (most?) students are, in effect, starting from scratch, with no prior legal or business training or experience. As a result, more substantive training is necessary, leaving less time for practical training.

I touched on this a bit in my remarks at the recent AALS mid-year meeting on Business Associations ("What Law Schools Should Teach Future Transactional Lawyers: Perspectives from Practice"), a draft of which is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430087.

One of my main focuses was on the division you mention of stuff and skills. I actually divide the world into stuff, skills and expertise and examine which of these law schools can (and should) teach).

MAW

Posted by: MAW | Jul 13, 2009 2:15:08 PM

Five years out of law school, and having about as much success as any big law firm lawyer could have five years out, let me say thank goodness I wasn't forced to spend any time on "important" issues such as common interest community governance.

Posted by: JK | Jul 13, 2009 4:22:07 PM

I agree that law is not "too challenging" for undergraduate study. But I also believe strongly in liberal arts. I am not sure a "pre-law" track would provide general training than a rigorous liberal arts education. For instance, at my school, (Stanford), students could not graduate without some exposure to "hard" sciences as well as social sciences such as economics.

I also disagree that teaching more "skills" or advanced-level knowledge (at a rough cost of $60000/year + opportunity cost) is a worthwhile investment. Many lawyers are unsure of their eventual specialty. In fact, some will remain generalists their whole lives. Why cause them to spend more time and money to specialize in the hallowed halls of academia? It is clear that on-the-job training has permitted many attorneys to specialize successfully. The current model is not broken. Additional schooling is available, at additional cost, to those who wish to specialize further. Why penalize the whole for something that only some desire?

On a personal level, I am flabberghasted by this development. Some people decide to gravitate toward law later in life. Would they be grandfathered? Why should an older law student need time to learn "skills" if that person might have already developed such skills on the job? Why should an older student (with a decent educational pedigree, in my case) need "more time in school" to figure out how to practice law?

And why should we feed the legal prep machine even more? Kaplan and Princeton Review et al, along with BarBri and CLE providers, already have a fine racket? It is wholly unnecessary to feed the beast extra.

These ideas might be "provocative" to some. They appear "boneheaded" to me.


Posted by: MJH | Jul 13, 2009 5:14:53 PM

Why not require students to take a certain number of classes before law school? Well, I think that might be the end goal. But how do you do the transition? It seems to me that using placement exams would allow law schools to start moving in that direction, and would allow undergraduate legal programs to develop over time. It would also allow a degree of flexibility in the end goal -- it may be that we wouldn't ultimately want to require all students to take these classes before law school, but would be happy just with allowing some students to place out of the classes.

JK, don't knock CIC governance until you've tried it. It presents a lot of Bus Orgs like issues. Plus, an ever increasing number of Americans live in CICs. I don't think it would be absurd for me to take an hour of class time to cover a subject that might actually be relevant to people's lives - how homeowners' associations are run, how voting is done for covenant amendment, etc.

MJH, the end result of this doesn't have to be more skills training, though I personally think that would be a good idea. It could be that legal education ends up looking a lot like the current model, but that most people can get the JD in two years, rather than three. If you come to legal education late in life, then you can take a one-year program to get the basics, then a two-year JD program. Three years, just like we do now.

Posted by: Ben Barros | Jul 13, 2009 6:48:24 PM

I can see the benefits that allowing students to take AP-style law school classes and exams would have for students. Certainly for students who are motivated and know they want to practice law, such exams would both let them save money on law school and demonstrate a commitment to the career path that might be attractive to law school admissions departments.

However, as a recent top-of-the-class graduate of a top 20 law school I can say that I did not know I wanted to go to law school when I was an undergrad. It was not until graduating from college and working for a few years that I made that decision. I think this is true of many students who are very successful in law school and who go on to be excellent lawyers. I would be worried that a system like the one proposed above would create a pressure or bias in favor of students going straight through from undergraduate to law school. I firmly believe that for many people, being 22 and never having worked a 40 hour per week job in your life are not the best circumstances from which to enter the legal profession.

Posted by: MEL | Jul 13, 2009 8:01:17 PM

This idea would place even more hurdles to entry to the patent bar, which already requires a science or engineering degree (and thus a major investment of "non-law" time and energy). If scientists and engineers would be further penalized by an additional year (or two) of law school to make up for the time they couldn't spend as undergraduates, that would seem to be a significant additional barrier to entry.

Posted by: Derek Sugimura | Jul 13, 2009 9:29:11 PM

State Bar Associations and state governments need to stop requiring candidates for the bar to have come from an ABA accredited law school. This makes the ABA a quasi-governmental entity in which we have no representation. Furthermore, given the state of today's technology, the days of the brick and mortar law school are numbered. Down with ABA accreditation requirements and up with distance learning options. Down with expensive, cost-prohibitive law schools which compel students to be saddled with six-figures in debt, and up with options that allow students to work and be productive while simultaneously learning the "stuff and skills" they need to succeed.

Posted by: Bradley Pierce | Jul 13, 2009 9:58:07 PM

While taking so-called AP level law classes might be possible for undergraduates majoring in liberal arts who have a lot of free electives to throw around, it would be virtually impossible for science and engineering majors. Most science degrees define a very rigid framework of courses, down to which electives you can take. The entire undergraduate system would have to be reworked, which is not entirely feasible.

Posted by: oryx | Jul 14, 2009 4:25:19 AM

Thanks for all of the great comments. MEL, I hear you on people who decide to go to law school late, and I completely agree that it is best for people to do at least a year or two of work experience before going to graduate level law school. I'm not sure that these concerns undercut the proposal, though. For people who go late, there could be one-year programs designed to allow them to get the basics out of the way. They might still take three years to get a JD, but that isn't any different from what we currently have. As far as work experience before law school goes, if things develop so that there are undergraduate law programs, then people might be able to work in the legal field as law clerks before going to get their JD.

Derek and Oryx, those are great points about science education and patent law. People who study science might not be able to also do legal studies in their first four years of undergraduate study. Like people who decide to go to law school later in life, these people might need to do three years of graduate legal education - like they do now. I'm not sure that concern for people in this position should lead us away from allowing other people to get their law school faster and at a lower cost.

I should note that there is a little bit of inconsistency in my responses about the impact of the proposal on people who don't end up studying law at the undergraduate level. I keep saying that these folks could do their legal education in three years, just like they do now. If part of the goal of the proposal is to give students _more_ legal education then they currently get, then it wouldn't be possible to achieve that in three years. I need to fine tune this a bit, but for reasons of cost I wouldn't want graduate-level legal education to ever go more than the current three years.

Bradley, I personally agree, at least in part, with the distance learning point. I think that stuff (i.e., the basics of legal doctrine) can be taught well through distance learning. I have my doubts about teaching skills through distance learning. One of my reasons for proposing placement tests is to allow those subjects to be taught through distance learning. If people can demonstrate sufficient knowledge on the test, then the ABA shouldn't care how they got that knowledge.

Finally, getting back to Jonathan's first comment, I was thinking about how learning is iterative. I read a lot of Rawls as an undergraduate, and got a solid undergraduate-level understanding of his thought. I more recently have read Rawls as a graduate philosophy student, and have written as a law professor about Rawls's positions on property. My later reading of Rawls, of course, was a lot more sophisticated than my undergraduate reading. But it helped to have had the basics as an undergraduate. The same thing could be said for legal subjects like property. An undergraduate-level understanding of property might not be quite as sophisticated as a first-year law student's (though I'm not sure how much less sophisticated it might be), but would provide a strong basis for more sophisticated study of property and/or related subjects at the graduate level.

Posted by: Ben Barros | Jul 14, 2009 7:37:15 AM

what about all the LLM's who don't pay for law school overseas and then take a one year course and sit for the bar? You would be crazy to attend law school at all in the US for 4 years when you can study for virtually nothing abroad and then do a one year LLM.

Posted by: Jim | Jul 14, 2009 9:34:22 AM

As a person who studied tax law at both the undergraduate and graduate levels prior to law school I can say that no course in law school (or at least average law schools) is as difficult to master or more time consuming than than the rigorous courses I took in undergraduate and graduate school on tax law. Any undergraduate student preparing for the CPA exam (an exam far harder to pass than the bar exam. Even harder to pass than the vaunted California bar) is proof of the ability of undergraduate students to handle real/regular law school courses.

Perhaps better than the AP approach proposed here, would be a true/real Bachelor of Science in Law degree with all the courses in law that such a major would imply. Such a degree could easily substitue for the entire first year of current law school. Let such undergraduate degree programs be subject to ABA approval to guarantee the quality is there to substitute for the first year of law school.

A person could do an undergraduate law degree and go on to be a paralegal or go on to law school to become a lawyer.

Gary Britt

Posted by: Gary Britt | Jul 14, 2009 9:55:10 AM

Hey, this is great. As a recently graduated unemployed lawyer, I am all for discouraging people to go to law school. In fact, I say we add a year to law school for every year I'm out of law school.

Posted by: Dave Hammersly | Jul 14, 2009 11:28:15 AM

I plan to take the LSAT in September. I am current in an Undergraduate Legal Studies Program at the University of Maryland. I can honestly say compared to my freinds that are currently in Law school and took no prior undergraduate legal classes, I will be prepared for the Writing and research Law School requires. I currently tutor them with citations and Blue Book writing.

Posted by: Tiana Phenix | Jul 20, 2009 2:46:39 PM

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