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.
Judge José Cabranes of the U.S. Court of Appeals for the Second Circuit endorsed a two-year legal education in a 2012 speech before the AALS, but suggested that a third year could be spent apprenticing with practicing attorneys or in law school clinics. Cabranes acknowledged that such a change would hurt law schools’ bottom lines. Estreicher did not include an apprenticeship component in his proposal because he thought it unlikely that enough legal employers would take on students, he said.
The Arizona Supreme Court has been tinkering with bar-exam timing; in December, it approved a pilot program allowing law students to take the test during February of their 3L year. However, the students must be close to completing the full, three-year curriculum.
Unless the ABA changes its accreditation standards, New York students who opt to take the bar instead of completing their 3L years would not receive juris doctor degrees. (The ABA requires completion of 83 credit hours for a J.D. A handful of schools offer accelerated, two-year J.D. programs, but students still must meet the 83-credit minimum.)
Convincing the New York Court of Appeals would require significant support from practicing attorneys and professional organizations, Estreicher acknowledged. Practicing attorneys tend to be receptive to the idea because many recall their 3L years as worthless, he said.
Verizon Communications Inc. general counsel Randal Milch counts himself among that number. “I couldn’t wait to get out of law school. I absolutely would have taken the two-year option,” said Milch, who will moderate the discussion on January 18. “I think it’s important for upper-tier schools like NYU, which has gifted students and high placement rates, to be the ones leading this charge.” Several New York law deans said they welcomed the discussion but questioned the plan’s feasibility and whether it actually would help students. “I think this proposal reflects that everything is on the table right now in terms of rethinking the existing law school curriculum,” said Nicholas Allard of Brooklyn Law School. “It also reflects the need to ensure that law school is relevant.” Brooklyn Law is exploring a two-year accelerated program that would award J.D. degrees, he said.
WHAT DO EMPLOYERS WANT?
Patricia Salkin, dean of Touro College Jacob D. Fuchsberg Law Center, fears the two-year option wouldn’t satisfy legal employers’ demands for practice-ready attorneys. “If students spend the first and second years taking core courses, when are they going to develop the practical skills that firms say they want?” she said. “And for the students, will the firms hire someone with only two years of law school, even if they pass the bar?”
The answer to that question, at least for the law firms, judges and federal agencies that tend to hire a large chunk of NYU graduates, is likely no, said dean Richard Revesz. He predicted that few NYU students would be interested in the two-year option. “I’m not a fan of the proposal,” he said. “I think it would not be beneficial, but I’m interested in hearing a lot of viewpoints.” Revesz said he is skeptical that a two-year option would be an added incentive for schools to revamp curriculum, given that many — including NYU — have already changed their 3L curricula or are weighing such reforms.
Outside of New York, Northwestern University School of Law dean Daniel Rodriguez agreed that large law firms were unlikely to hire lawyers with only two years of legal education, but said the flexibility might make sense for students pursuing nonlaw firm jobs.
“I’m intrigued by the idea,” Rodriguez said. “It’s encouraging that there is some open-mindedness among those in a position to effect change. The spirit of the debate, driven by economic factors, strikes me as a good thing. If now is not the time to have this discussion, then when?”
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