Wednesday, February 27, 2013

More On Eliminating the Third Year of Law School: Stephen Gillers

Recently, some writers have proposed the possibility of eliminating the third year of law schools as a partial solution to the "law school crisis."  A few weeks ago, I wrote a post in response to an op-ed in the New York Times proposing such a solution.  (here)  My post was picked up by the ABA Journal. (here)

Here is the gist of my opposition to moving to a two-year program:

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.

One comment to my post stated, "If finding a job after a 3 year JD is tough, think of the nightmare of a 2 year 'certificate' program. Who do the Dean's think will be hiring 2L bar passers?"  Another declared, "How, exactly, would giving students even less training result in better lawyers able to jump out and start practicing even earlier? Already the schools don't teach them how to run their own practices, offering little or no business training. With even less time, schools would be packing more "pure law" into the curriculum, leaving no time for anything practical. And then we'd expect these students to fix the access to justice issues and fill jobs in the public service."

Now, Professor Stephen Gillers has also weighed in on the issue in a comment to the ABA Task Force on the Future of Legal Education.  He takes a more neutral view than I do, giving arguments for both sides of the controversy.  However, he does agree with some of my criticisms concerning eliminating the third year.

He writes, "Allowing admission to the bar after two years of law school to reduce debt and make five-figure jobs affordable must conjure with the reality that there will still be many three year graduates. The three year 'overhang' will weaken the market for the two year graduate."  He then adds a hierarchy argument, "Another fact to consider is that many students who elect the two year degree to save money and avoid debt will be those who are in greater financial distress. We would be making it easier for the economically pressed students to choose two years where those who can absorb the cost and the delay will largely go on to a third year. "

He also notes, "As others have suggested, an LL.B. after two years of study may attract the attention of some prominent schools that do not now offer any law degree. Indeed, it is not farfetched to imagine that some colleges may offer an LL.B. after five (rather than four) years of study."

He also asks what will be lost if a third year of law school is eliminated.  For example, "The number of seminars may decline as a result of reduced student demand for them. Seminars are the usual venue for a substantial writing requirement. Will that be eliminated for the two year degree?"  Similarly, "absence of a course in particular field will put the two year graduate at a further competitive disadvantage with a three year graduate who has taken that course. Imagine that each of two students has applied for a job to a firm that does intellectual property or environmental law work, courses the three year student had the time to take but which the two year student has not."  Likewise, a student may not be exposed to an area of law that she might find exciting if she knew about it. 

He concludes, "If a prospective student asked my advice, I would strongly urge her to spend three years in law school. But the question is different. It is whether we can say – and therefore urge state courts to say – that three years are needed to ensure the level of competence a state should require for bar admission. I don’t think we can say that."  However, "Now we are faced with the question whether we should recognize hierarchy in legal education and legal work, at least by permitting bar membership after two years of post-college study, accompanied by a law degree carrying a different name."

(Scott Fruehwald

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