New York Times: Make Law Schools Earn a Third Year (with a Reply)

Today, a meeting at NYU will discuss a proposed rule change that would allow law students to take the New York bar after two years of law school.  Dean Daniel B. Rodriguez and Professor Samuel Estreicher have written an op-ed in the New York Times in which they discuss the proposal.

The authors write, "If adopted by the state’s highest court, it could make law school far more accessible to low-income students, help the next generation of law students avoid a heavy burden of debt and lead to improvements in legal education across the United States. . . .  Law schools  would no doubt continue to provide a third year of legal instruction — and most should (more on that in a bit) — but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work."  They add: "But a straightforward solution — one that would shave the current law school bill by a third for those who take this option — is simply to permit law students to sit for the bar exam and begin practicing even if they have not received a law school degree."

They conclude that "While this wouldn’t increase the number of available jobs, a two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts. . . .  A two-year option, in our view, would provide young lawyers with the training they need to get started, lift a heavy financial burden off the backs of many — and vastly improve third-year curriculums in the process."

However, they believe that a third year of law school can still be valuable: "With this reform, law schools would have an obvious financial incentive to design creative curriculums that law students would want to pursue — a third-year program of advanced training that would allow those who wished it to become more effective litigators, specialize or better prepare for the real-world legal challenges that lie ahead."  They continue, "We are confident that many law schools will be able to meet that challenge.  In fact, that evolution is already going on, as many schools (including our own) reimagine their third-year curriculums through externships, public service programs and courses that offer in-depth practical training. If this trend continues — and the two-year option would only encourage it — those who graduate from rigorous three-year programs will not only emerge with sharper legal skills, but also be more essential to employers, raising the rate of job placement out of law school."

I strongly disagree with the proposal that law school should be two years.  Under our current system of legal education, most attorneys are not ready to practice even after three years in law school.  I have often written on this blog about the need to serve minorities and the poor, but providing substandard lawyers is not the right solution.  The problems of the underserved can be as complicated as those of corporations.  Moreover, public service organizations and public interest law firms do not have the resources to train lawyers who did not receive the proper training in law school. 

Similarly, while I believe there is a significant problem with the high costs of a legal education and the debt that many graduates incur in law school, I do not think that two years of law school is a solution to that problem either.  First, lawyers who have only two years of law school will have to compete with lawyers who have three years of law school.  Who do you think firms will hire and who will get the best assignments?  Second, as is true of public interest law firms, most law firms today do not have the resources or time to train new lawyers.  Finally, the two-year proposal will not stop the glut of attorneys on the market today.  In fact, it might make it worse because more people might go to law school if they only have to go for two years.

I do agree with those critics who state that the third year of law school at present is worthless for many students.  Like Dean Rodriguez and Professor Estreicher, I believe that law schools can make the third year more valuable by giving students skills classes, clinics, and other experiential opportunities.  I have often mentioned as an example of a valuable third year the third-year program at Washington and Lee, which is all practical courses.

In sum, while I agree that it is time for law schools and the legal profession to act, allowing students to practice law after only two years of law school is not the answer.

(Scott Fruehwald)