Are we then being prudent when we conclude that the third year of law school is a boring waste of time? Or is it just as reasonable to argue that the third year provides an opportunity a law student will never again have to hone her skills.
It was probably inevitable. As more and more students graduated from law school with crippling debt and meager job prospects following the Great Recession, the drumbeat for reform grew louder and louder. Soon the examination and scrutiny of contemporary legal education turned from mere criticism into a wholesale assault and then into ugly charges of unwarranted over-pricing and even fraud.
The expected return on investment could not possibly justify the cost of a three-year J.D. program — now $75,000 per year at some schools — the critics argued. Would-be law school applicants apparently agreed, because the past few years have seen a startling decrease in applications, with 2013 showing a 13 percent drop nationally over the preceding year and second- and third-tier law schools experiencing an even steeper decline.
So the experts have come forward and opened the floodgates of restructuring with proposals to cure the systemic problems allegedly corrupting our legal education system, including:
• Reducing the traditional three-year curriculum to two years; a proposal supported even by President Barack Obama in a recent speech.
• If not eliminating the third year of law school, then at least replacing it with internships or clerkships.
• And if neither of those approaches can be embraced, then devoting the third year to clinical courses only, so that new graduates would have some idea of what really happens in a law practice as opposed to a law library.
But those ideas were hardly new and profound. Indeed, a study of legal education funded by the Ford Foundation in 1970 concluded that the third year of legal study was an unnecessary expenditure of time and money, and law firm managing partners have long been loudly complaining that rookie associates come to them filled with legal theory and devoid of practical legal knowledge.
So the legal pundits, and the law school deans, and the other experts started promulgating new and different solutions to the perceived general unhappiness with the current state of legal education. “Three and Three” programs began to spring up at universities with law schools, wherein participants fulfill their core requirements of their selected undergraduate major in three years — instead of the usual four — and then use their first-year law school courses as the electives necessary to complete their undergraduate degree requirements. At the end of six years — instead of seven — they have a bachelor’s and J.D. degree. Of course, those proceeding in this manner have virtually no room for electives, or year abroad studies or, perhaps, most importantly, some time off to work and gain real-life experience before undertaking the rigors of law school. Nonetheless, some two dozen law schools now offer such a program.
Others have advocated for the greater use of “reading the law” approach, which is still permitted in several states but which is utilized in only insignificant numbers. The corollary of that argument, of course, is the adoption of that process by more states.
Perhaps the most dramatic proposals for change have come from — of all places — the American Bar Association’s Council of the Section of Legal Education and Admission to the Bar. At its meeting this past August, that accreditation group focused on ways to reduce the cost of law school tuition. They recommended, among other things, eliminating the tenure requirements for faculty and deans; permitting students to take up to 15 credit hours online; and reducing the full-time faculty-to-student ratio.
Not to be outdone, the ABA’s Task Force on the Future of Legal Education recently issued its “Working Paper,” in which it comprehensively addressed all the aspects of the controversy surrounding law schools and made recommendations, which, if adopted, would result in a sea change in legal education, including:
• Continuous reassessment of our system of legal education by a standing commission “with appropriate expertise . . . regarding law school pricing and financing.”
• Revision of accreditation requirements that are not “contributing commensurately . . . to the goal of ensuring that law schools deliver a quality education, . . .” including those relating to “distance education,” student-faculty ratios, full-time faculty, tenure, etc.
• Revision (or elimination) of law school accreditation requirements that “directly or indirectly impede law school innovation in delivering a J.D. education, . . .” This includes requiring a dean to be a tenured faculty member; requiring a fixed minimum number of hours of attendance in regularly scheduled class seminars; and requiring minimum standards for library directors.
• The development of educational programs at the university level to prepare persons other than prospective lawyers to provide limited legal services.
In the face of this unprecedented turmoil in what was heretofore a largely unchanging industry, we call for a time out, a deep breath, and a step back. Structural changes — especially in an institution so important to our societal good — should never be made in an atmosphere of frustration, anger, defensiveness and chaos, which is clearly what now prevails with respect to legal education. Worse yet, it is a panic driven by what may very well be faulty assumptions.
A recent study by Professors Michael Simkovic and Frank McIntyre examines the statistics claiming to support the argument that a law degree makes no economic sense and completely debunks them, demonstrating instead that a law degree does, in fact, result in the holder realizing very significant increases in income over her working life, which makes legal education a very worthwhile investment.
While law school tuition has increased in the past decade at a rate far greater than inflation or even tuition increases at other professional graduate schools, and although efforts must continue and intensify to find ways to control that disturbing and intolerable phenomenon, the increases, until the recession took its toll on Big Law, were largely matched by starting salary increases. Perhaps an adjustment period is required to put that back in balance, so that tuition increases are again aligned with jumps in starting salary levels.
Moreover, the current attack on law schools is predicated in large part on the very painful disconnect between cost and reward caused by the dismal job market now prevailing. The critics assume that this is the “new normal,” so law schools must change to accommodate it. This may be a permanent change in the demand for new lawyers, or it may not be. Five years is simply not enough time to determine that. We have seen economic downturns adversely affect our profession before this one hit, and we have bounced back from those.
The ABA Working Paper speaks of the “private good” inherent in legal education and the “public good.” The latter is important to the well-being of any society predicated on the rule of law, because the legal education system produces the lawyers, judges, prosecutors, public defenders, academicians, and legal thinkers who have made our civil and criminal justice systems the envy of most civilized nations. We undertake its dismantling and re-building, therefore, at great risk.
In addition, law schools put forth, for the most part, brilliant faculty members with outstanding pedagogical skills, who provide a unique and high quality learning experience and turn out well educated lawyers. Can we be sure that will remain so if we eliminate tenure and full-time faculty minimum levels?
Finally, we simply cannot ignore what has not been, for some reason, part of the discussion. Since the “reading law” system was largely abandoned a century ago, our system of legal education has produced hundreds of thousands of outstanding lawyers, who have well served both the private and public sectors. In short, for the most part, it works.
Are we then being prudent when we conclude — with absolutely no supporting empirical evidence — that the third year is a boring waste of time? Or is it just as reasonable to argue that the third year provides an opportunity a law student will never again have to hone her skills; take courses in areas where he has a special interest — even a passion; participate in clinical programs; or just take another year to mature into a lawyer with the skills and ethics our profession needs?
Are we really advancing the “public good” interest in legal education when we replace with “distance learning” the invaluable and intellectually challenging give and take with the professor and fellow students in a seminar class? Are we moving in the right direction when we completely replace the hard core, traditional third year courses with “practical experience,” so as to placate the law firms that have concluded they are entitled to “ready to work” associates?
Let us look hard, very hard, at the precious societal asset that is our legal education system before we start tearing it apart.