A proposal to allow students to take the New York Bar Exam after two years of law school has piqued the interest of the state’s top judge.
Court of Appeals Chief Judge Jonathan Lippman stopped short of formally endorsing the idea when it was taken out for a public airing on January 18 at New York University School of Law. But he told the more than 100 gathered legal educators, practitioners and judges that the concept deserves serious study.
“I don’t think there is anyone on a law school faculty or on the bench who would say, ‘This is crazy,’ ” said Lippman, who oversees the state’s court system. “ [This] proposal challenges all of us involved in legal education to, whatever the length of law school, look at how we can do better.”
Rising law graduate debt and “the lousy job market” have brought legal education to a crossroads, Lippman said. “I don’t know the answer, but I can say that we want to hear more. This is a fascinating subject.”
The concept of doing away with the third year of law school, or at least making it optional, has been around for decades but has never gone much beyond discussion. NYU law professor Samuel Estreicher recently revisited the topic in an academic article titled, “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 studied the law at a time when two years was the norm.)
Estreicher argues that making the third year optional would reduce the cost of attendance by one third, while giving law schools incentive to experiment with their third year curricula. If students don’t see value in that final year, they could take the bar exam instead and law schools would surrender the final year of tuition.
“This is not about the fate of the third year; this is about choice,” Estreicher said. “Law students shouldn’t have the force of the state saying, ‘You’ve got to complete a third year.’ Let’s not make it a one-size fits all.”
Under Estreicher’s proposal, students who take the bar exam after two years would not obtain a J.D., but would be eligible for a bar card. (The American Bar Association’s law school accreditation standards require students to complete at least 83 credits; Estreicher would establish New York bar exam eligibility upon the completion of 60 credits.)
Some practitioners and legal educators at the meeting liked Estreicher’s proposal in theory but doubted that many students would pursue the option. Washington University in St. Louis School of Law Professor Brian Tamanaha said many students would skip the 3L year, which would create huge financial losses for law schools. “Law schools will respond in ways intended to produce more revenue,” he warned, possibly bringing in large 1L classes to make up for lost revenue.
St. John’s University School of Law professor John Barrett noted that only a handful of people take advantage of New York’s law apprentice program, which allows candidates to sit for the bar exam after one year of law school plus several years of a closely supervised legal apprenticeship.
“Two years might well be enough law school, and it certainly would reduce the cost for students,” Barrett said. “I’m skeptical that it would be much utilized, and thus it’s a low-risk proposal.”
Some legal educators warned that the two-year option would create a stratified bar, with two-year students going on to serve lower-income clients and the three-year group taking higher-paying law firm jobs. Large firms might prove reluctant, they argue, to hire students who lack J.D.s.
Zachary Fasman, a partner in Paul Hastings’ employment law department, described a mixed reaction from colleagues on that point. However, firms might hire two-year lawyers as apprentices, he said, paying them less than first-year associates and billing for their work at lower rates. As it stands, firms already spend considerable time and money training associates who have spent three years in law school.
“That would be great,” Fasman said. “That’s a win-win if I ever heard one.”
Some legal academics have wondered how much sense Estreicher’s proposal makes when employers are demanding more practical skills and real-world experience of recent graduates. However, University of Tennessee College of Law professor Joy Radice argued that the option would help break down the wall between traditional doctrinal classes and practical skills courses. The latter typically are relegated to the second or third years.
Audience members weighed in both for and against idea. Aikta Wahi, a 2011 NYU law graduate, said that the small firms and public interest organizations she wanted to work for lacked the time or resources to train new attorneys. Spending two years in school followed by a third year of real-world training with little or no pay might have made her more marketable, she said.
NYU law professor Stephen Gillers urged Lippman to proceed with caution, but Verizon Communications Inc. general counsel Randall Milch saw danger in delay. “Analysis paralysis is our worst enemy here,” he said. “If we are going to overanalyze, we’re never going to figure this out. In my opinion, we have to move and see what happens.”
University of Arkansas School of Law Professor Stephen Sheppard thought the panel was stacked with supporters of the two-year option. He argued in a letter to Lippman that the 3L year allows students to take advanced courses and participate in extracurricular activities, including law journals. “Market pressures and a race to the bottom in legal preparation would erode what consumer protection for clients the law degree now assures,” he wrote.
New York Court of Appeals Judge Victoria Graffeo told the audience that she wants to hear more. “We are very pleased to be here and I think it’s a most interesting discussion, she said. “There is more we need to look at and investigate.”
Karen Sloan is a reporter for The National Law Journal, a Legal affiliate based in New York.
