Saturday, January 19, 2013

Third Year of Law School

Okay, we're mostly law professors here, and I've mostly avoided weighing in on the various debates going on about the changes in the legal profession and the effect those changes are going to have on legal education.  Most of my reticence has had to do with my faith in the business cycle.  The current downturn is not the new normal, and my sense is that the bigger risks come from "oversteer" than from the current state of the market.

But, an op-ed in the Times and a conference at NYU have driven me to break my silence.  The conference is to discuss whether New York State should allow law students to sit for the bar after their second year of law school.  It's not a crazy idea, but the devil is in the details.  There are a lot of good reasons to do this.  None of them are mentioned in the Op-ed.

The driving force behind the change derives from a bit of "lore" about the third year of law school.  The third year is described as "those famous semesters in which, as the saying goes, law schools “bore you to death” and student attendance drops like a stone?"  I remember this view of the third year.  It prevailed back in the 1980s when I went to law school.  It was prevalent at elite law schools where most students had their post-graduation jobs lined up after their second summer.  This was indeed a problem, but not a problem caused by the third year of law school.  It was a problem caused by the competition for top law students during a boom.  

This has not been my experience with regard to third year law students.  I teach at an excellent law school, but it is not a top ten law school.   Many of our students get big firm jobs, but a large chunk of the class is hired during or after completion of the third year.   In my experience, this has meant that our students remain engaged through the third year.  This is because their grades still matter, but more importantly, they use many of the advanced upper level courses to develop saleable expertise.  They take advanced courses in bankruptcy, securities regulation or tax, if they want to be business lawyers.  They participate in moot court teams, clinics and trial advocacy classes if they want to become litigators.  In short, the third year matters to theses students.  It matters a lot.

Now letting students sit for the bar after their second year does not necessarily meant that students would leave law school after their second year.  First, New York is the only state considering this rule change.  Without a three year degree, the students would be immobile.  Second, a law student who has passed the bar can do some interesting things.  Externships might be more valuable if the student lawyer could engage in the practice of law.  Medical education does not end when med students pass their boards. Internship and residency continue the educational process.  

This does not mean that getting rid of the third year of law school is a good idea.  It was bad for the profession when students checked out during their third year.  It would be bad for the profession to turn out badly educated lawyers as well. 



  1. Very thoughtfully argued. I personally would have enrolled in a fourth year if I could have justified it, but then again, I beat feet back to the academy as soon as I could (so I'm hardly a helpful yardstick).

    It is an interesting question how impactful this would be. Consider, e.g., the number of students who voluntarily enroll in LLMs (and who are not foreign lawyers) in order to achieve a new credential. Nearly all law schools are offering certificates in substantive areas, which seem to serve a similar purpose. One could not accomplish the requirements for the commercial law certificate (which I am currently drafting) and graduate in two years. Actually, three years will be pushing it!

    So already employed 2Ls may leave, but not to clerkships -- what appellate judge would permit her clerk to pass up the extra year of reading and writing practice; not likely to big firms -- what big firm would eschew the extra training that would otherwise fall on it to accomplish; and not likely to many other practices -- what lawyer who cannot clerk or gain a big firm brand name can afford also to demean his credentials?

  2. I agree with all of this, and I applaud you for constructing a commercial law certificate that is rigorous. That is, dare I say, a bit unusual.

    My frustration with the broader conversation about the role of law school in the allegedly new and allegedly changing legal environment derives from the fact we have made sitting ducks of ourselves. Nobody would argue that we should shorten med school and relax the licensing requirements. I don't hear anybody crying out for reduced standards for Ph.Ds. This is true, even where the decision to pursue such a degree is not justified by an "income effect." It is not economically rational to pursue a history or english Ph.D, even if you are on scholarship. The opportunity cost alone is staggering.

    We have succumbed to the idea that we don't teach anything in law school, or that we don't teach anything useful. We have succumbed to the idea that there is no shared body of legal knowledge that all lawyers should know. The perception is that we've outsourced all of that to Bar Bri anyway.

    This reduces what we are to a 'credentialing' institution where any transfer of substantive knowledge is incidental. Okay, maybe we also train people to "think like a lawyer," but again, this is process, not substance. As a selfish matter, this is great for us law professors. It frees us to do whatever we ant and call it legal scholarship. Far be it from me to cast that stone. I live in a glass house. My concern is that there has been no serious discussion of what body of knowledge, mode of knowing, set of skills, etc. a modern lawyer needs to have.

    I am not suggesting a return to purely doctrinal education. A modern lawyer should know some accounting. They should understand statistics. They should know a fair amount of history (not just America). Even with regard to doctrine, we don't do a particularly good job. To use a commercial law example, most law students have to learn what a negotiable instrument is and they learn what a holder in due course is. Most students learn this for the bar exam in a black letter doctrinal way. They don't learn the concept well enough, however, to see how negotiabilty like devices can be used by the financial services to create ad hoc money substitutes, nor to see how turning everything into a money substitute can be dangerous. Might a more sophisticated commercial law course have averted the 2008 meltdown?? Well, probably not, because nobody takes Payment Systems anymore . . .

    I think the certificate programs are an important first step in remedying this problem. The process of putting together a certification process, if done in a serious way, reguires thought about what a commercial lawyer, or a securities lawyer, or a family lawyer, or an international lawyer, or an IP lawyer needs to know and needs to know how to do. My concern is that these are spokes, and we don't have any strong sense of what belongs at the hub. . .

    In short, my strong feeling is that the legal profession probably needs more law school, not less. Unfortunately, we also need to be able to say more of what, and that does not appear to be emerging from the current process of self flagellation.

  3. Oh, and I should add, since graduating from law school, I have been lucky enough to teach at a couple of top ten law schools. I have found the students to be engaged, engaging and exciting to teach. So, it seems to me that the "lore" about the value of the third year of law school may be outdated (if it was ever true).

  4. Also, the "more of what" is likely to vary from institution to institution, and rightly so. Some schools may focus on policy, others on public interest, others on business law. Yale is, I think, wisely beginning to offer a Ph.D in law for aspiring academics. This comes back to the certificate or concentration programs which help students to be more intentional about how they study law.