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FDR did fine without a 3L year

New York may let law students once again take the bar exam after two years.

By Karen Sloan Contact All Articles 

The National Law Journal

January 14, 2013

Duke Law School professor Paul Carrington

The third year of law school has long been a punching bag for critics who argue it's a waste of time and drives up the costs of a law degree, but there have been few serious attempts to do anything about it. Until now.

Legal educators and top New York state court officials will gather on January 18 to discuss whether to allow candidates to sit for the New York state bar examination after just two years in law school. The idea was floated by Samuel Estreicher, a professor at New York University School of Law, who believes skyrocketing law school tuition and diminishing job prospects for new lawyers have created a climate favorable to reform.

"People have been asking for years: 'Do we really need a third year of law school?' " said Estreicher, co-director of NYU's Institute of Judicial Administration. "I'm simply proposing that we give students a choice to stay for three years or leave after two. The economic downturn is a big part of it."

He believes additional states would follow suit if New York adopted a two-year option. The proposal may prove a tough sell to the legal academy at large, however, which has blocked previous attempts to drop the third-year requirement.

"It's unlikely that the way to prepare our students for a toughened competition, global and otherwise, is to assure they are less fully educated than their predecessors of the past 75 years," said University of North Carolina School of Law professor Gene Nichol. He argues that law schools need to find other ways to reduce student costs — for example, by reducing faculty salaries and increasing teaching loads.

Estreicher laid out his proposal in an article, "The Roosevelt-Cardozo Way: The Case for Bar Eligibility After Two Years of Law School," in the New York University Journal of Legislation and Public Policy. (The title refers to President Franklin Delano Roosevelt and U.S. Supreme Court Justice Benjamin Cardozo, both of whom obtained their law degrees when two years was the norm.)He described two benefits to the two-year option, not least that the cost of becoming a lawyer would be reduced by one-third and that, with lower student loan debt, graduates would be in a better position to take lower-paying jobs representing low-income clients. Second, an optional 3L year would give schools incentives to create third-year curricula of more use to students, he wrote; if students saw no real benefit to the 3L curriculum, they would sit for the bar exam instead.

'WASTING PEOPLE'S MONEY'

Between 1882 to 1911, New York allowed candidates to sit for the bar exam after only two years of law school. By 1905, the Association of American Law Schools (AALS) had mandated that member schools adopt three-year curricula. However, during the 1970s, separate reports funded by the Carnegie Commission on Higher Education and the Ford Foundation supported the option of two-year law schools.

"We both concluded that law school should be two years because we were wasting people's money," said Duke Law School professor Paul Carrington, who wrote the Ford Foundation report. "The law professors objected to it. There will be the same interests this time around, but we have really let the price get out of control. That's a major difference."

Trying to convince the American Bar Association's Section of Legal Education and Admissions to the Bar or the AALS — both run by legal educators with a financial stake in the 3L year — is a losing strategy, Estreicher said. He hopes for a friendlier hearing from New York's highest legal tribunal, the Court of Appeals. Chief Judge Jonathan Lippman, who oversees the state's court system and who recently instituted a 50-hour pro bono requirement for admittees to the bar, and Associate Judge Victoria Graffeo are slated to attend the January 18 meeting.

"I don't know what will happen with this, but there is enough interest from some of the decision-makers to come to the meeting and hear more," Estreicher said. "I've received a lot of interest from academics, as well."

Washington University in St. Louis School of Law professor Brian Tamanaha is among those academics. Law schools need the flexibility to experiment with different models, Tamanaha argued in his 2012 book, Failing Law Schools.

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