I laughed when President Obama threw his support behind reducing the academic content of law school to two years. The former law professor thought the suggestion was so “controversial” that he had to save it for his second term. U.S. Supreme Court Justice Antonin Scalia doesn’t find the idea so amusing. Speaking at William and Mary Law School’s graduation ceremony [PDF], the justice “vigorously dissented” from the thought of nixing the third year of law school because, in his mind, doing so would demote the legal profession to a mere trade, diminishing attorneys’ well-deserved status.
Before discussing Scalia’s remarks, I want to make two technical points. One, the American Bar Association does not require law students to stay in school for three years. Rather, ABA regulations require them to complete 58,000 minutes of instruction, 45,000 of which must come in a classroom setting. (The ABA’s Section of Legal Education is seeking approval to change the requirement from minutes to an equivalent number of credit hours as defined by the U.S. Department of Education, but that hasn’t happened yet.) Though the time requirement can be met within two years, law schools generally ask their full-time students to do it in three.
Second, there are two distinct types of proposals related to eliminating the third year of law school that have been floated: one type would allow law students to sit for the bar after two years of instruction. The other, like the one backed by Obama, calls for additional skills-based instruction—possibly in a law firm setting—instead of a third year of classes. The difference isn’t relevant to what Scalia had to say, but it is important for those concerned about how much law students are paying (or are paid, if they work during their third year) for their legal education.
As for Scalia’s arguments against the two-year model, as well as some of his other comments, I concur and dissent.
Certification Instead of Credentialism
Let’s start with one point of agreement: Scalia is open to certifying people to perform certain legal tasks—such as real estate conveyances after six-week training programs—without extensive legal education, so long as they are not allowed to call themselves lawyers. This is a fine idea for a few reasons. First of all, offering such a certification would slash the cost of training people to enter these lines of work, so student loans would be less of a problem (or not a problem at all). Second, it would eliminate the excess cost to consumers of having these types of legal services performed exclusively by lawyers. For example, one recent law review article criticized state laws that define title certification and abstraction as legal matters that must be handled by a licensed attorney. Whether such rules actually have the effect of lining lawyers’ pockets at inflated prices is debatable, but if the problem does exist, certification programs could ease it. If Scalia wants to exclude these people from claiming the professional title of “lawyer,” I have no objections. I believe that state bar authorities should try to break the profession into as many discrete certification systems as possible.
Two-Year Instruction and ‘Core’ Law School Curriculum
The primary argument Scalia advanced in his address involves retaining the third year of law school instruction, purging the course catalogs of what he considers inessential classes and cutting tuition to make legal education more affordable. With this prescription, he implied that academics are responsible for softening law school curricula even as the practice of law becomes more complex. Scalia devoted an amusing section of his speech to examples of classes that students can take at some of the nation’s most prestigious law schools. At the same time, he attacked proposals, like Obama’s, to transform the third year of law school into a practical exercise, and—in comments that somewhat cut against his endorsement of certification discussed above—he noted the various benefits of familiarity with a larger body of law rather than narrow specialties.
Here I dissent—and not because I’m a fan of humanities-type courses. Scalia appears to be confusing cause for effect. The salient question is this: Why are elite law schools able to offer “soft” courses that conform to professors’ research whims rather than “hard” ones that “professionals” need to know? The answer is not that the academics have themselves softened, but that there is no penalty to their students if they refrain from indulging themselves and interested students.
Scalia told a story of clerkship applicants who confess to not having taken useful courses like “federal courts” or “evidence” while in law school because those classes weren’t available when they could have taken them. Obviously, it’s possible the applicants misrepresented their law school class choices to the justice, but plenty of law schools, particularly nonelite ones, require students to take such “hard” courses. The difference is that elite legal employers like Scalia rarely hire from nonelite schools. (Scalia’s colleague on the court, Clarence Thomas, notably resists the urge to hire his clerks from prestigious law schools.) The reason that Northwestern University School of Law, for instance, is able to offer a class titled “Large Law Firms” is that it can reliably place its graduates with such employers. In fact, half of Northwestern’s grads last year reported working full-time, long-term at firms of 501 or more lawyers. Another 8 percent clerked for federal judges. These students’ course selections do not appear to impede their impressive employment outcomes.
Scalia also elevates classroom learning needlessly for other reasons worth mentioning. One is that prestigious law schools enroll students who tend to be sharp learners, as evidenced by their standardized test scores and undergraduate performance (to the extent that they did not benefit from grade inflation). If they can easily memorize the hearsay exemptions and exclusions for the bar exam, why should they have to sit through a class and learn them the slow way? Moreover, just because people take a course in law school doesn’t mean that they were paying attention, were well taught or retained the material covered beyond what they knew at the time of their final evaluation. For all the criticism directed at law schools at the bottom of the status hierarchy, comparatively little is said of elite schools that charge $50,000 per year to teach students who could probably pass a bar exam by self-study. These are more reasons to question how legal education is delivered and whether it builds human capital or signals preexisting aptitudes to prospective employers.
Sustainability of Law Schools
Scalia suspects that the two-year-J.D. proposal is less about improving legal education and more about responding to rising legal education costs. This is completely true: The two-year law degree is an arbitrary solution to a problem enabled by the federal student loan program, which Scalia does not mention.
The question of how much legal education lawyers really need independent of inflated costs is worth asking. Scalia is clearly aware of the evidence showing that the legal sector has stagnated in recent decades, a development that—along with the rising cost of earning a J.D.—makes the current legal education system unsustainable. However, that stagnation contradicts his earlier observation that the law has become more complex. Complexity implies a growing need for professionals to guide clients through regulations and bureaucracy. The facts say otherwise: Either lawyers’ guidance is not as necessary as it once was, or other professionals are now able to provide it just as effectively. Thus, Scalia is correct that legal education in its current form is unsustainable, but a core curriculum won’t do much for students whose services aren’t really in demand or who would have been hired by large firms, judges, government units, nonprofits, etc., no matter what courses they took.
Another problem with Scalia’s remarks on the sustainability of law schools is that they don’t align with his criticisms of course offerings. After spending most of his address attacking elite law schools, he accurately, I think, predicted that the lesser schools will be the ones that will be forced to cut tuition costs and reduce faculty sizes, which they have already begun to do. Meanwhile, the prestigious schools will continue as usual. If so, the two-year law degree doesn’t look so problematic. Either students at prestigious schools will have one less year of frivolous courses, or institutions that were essentially trade schools all along will have to focus more on material tested on the bar exam. Everyone except the professors wins.
Funny or not, the two-year J.D. is probably coming no matter what Supreme Court justices, the president and law professors think. Left unaddressed are the forces that have made legal education unaffordable relative to the employment outcomes many law graduates can expect. Whether students spend those two years immersed in core courses, sophisticated skills training or academic navel-gazing won’t improve things either, so long as the profession is preoccupied with pedigree and status.
Matt Leichter is a writer living in Brooklyn, N.Y. He received his dual degree in law and international affairs from Marquette University. He operates The Law School Tuition Bubble, which archives, chronicles, and analyzes the deteriorating American legal education system. It is also a platform for higher education, student debt and fiscal reform.