A few weeks ago, I suggested that it might be useful to consider whether we really had to use eight years, four undergraduate and four graduate, to turn a high-school senior into an M.D. I pointed out a variety of programs around the country that had successfully achieved the goal in six or seven years with no apparent diminished quality.
Today I want to propose that we may be taking too long to educate lawyers. There was a time in the not terribly distant past when it was possible to enroll in law school without having to complete a bachelors degree. Indeed, there were some states where one could sit for a bar exam without having attended to law school at all; you simply had to clerk for a designated period of time in a law office under the supervision of a member of the bar.
Within my lifetime, graduates of law schools received bachelor of law degrees. Andthen one day the degrees were upgraded to doctorates. I remember receiving a letter from my law school inquiring whether I wanted to exchange my LL.B for a J.D. I think there was a $25 transaction fee.
If memory serves me, when I was a young man in New York one had to spend a year working in a lawyer’s office after law school before one could take the bar exam. Legal education during my sojourn in the academy has both changed dramatically and remained the same. And of course different law schools have provided different experiences within the protocols provided by the American Bar Association through its accreditation function. There are law schools that can be characterized as extended bar-examination preparatory programs, and others that are indistinguishable in many ways from graduate programs in which the law is mentioned but in which philosophy, economics, history, and other more scholarly and less provincially professional subjects are liberally explored.
The truth is that at many law schools they scare you to death in the first year, work you to death in the second year, and bore you to death in the third year. Ask law students about the last year of law school and they will look furtively to the right and left to make sure the dean isn’t listening and wonder about its utility. It does provide some opportunity for taking courses in areas of the law that may be interesting, if not absolutely crucial, but I think a cost-benefit analysis might suggest these might be more economically done on one’s own: online, or through some sort of continuing legal-education initiative.
Two possibilities come to mind. One is to recast law school curriculum so it can be completed in two calendar years — or even perhaps two academic years. A second is to infuse the third-year program with enhanced substance and vitality and make it professionally more useful and intellectually more challenging. There has always been some tension between legal educators and the profession. Is the purpose of law school to prepare one for practice? How much clinical experience is necessary? These questions struggle with the increasing determination of law schools to become more scholarly, more like graduate schools — and one can’t help to notice an increasing number of law faculty who havemasters degrees and Ph.D.‘s in addition to their law degrees.
There was a time when law professors came to the academy armed with their legal diplomas and perhaps a clerkship for a judge and a year or two of practice. Today, they are expected to have publications — articles, maybe even a book, in a manner similar to that of colleges and universities. One sees changes also in the professional journals — law reviews, published by law schools and edited by the more outstanding law students, those with top-of-the-line academic performance during their first year of law school. I know of no other profession in which the pre-eminent scholarly journals are edited not by professors or accomplished researchers but by students just starting to enter the discipline.
Left to my own devices I’d restore the LL.B for those who felt that two years of law school was sufficient to prepare them to take the bar exam and proceed to a clinical career. Possibly, I’d require a year of work experience prior to being admitted to the bar. I’d retain the three-year law school experience and the J.D. degree for those who wanted a more academic experience.
One could imagine a blend of these two options and it may be that Washington & Lee law school has already begun to move in that direction, substituting in the third year for conventional academic classes experiential learning in which students would meet clients. Additional instruction would become like that provided by medical schools — providing practical simulations, hands-on interactions, and law practice skills.
For some time judges and practitioners have been complaining to me that students they hire don’t know enough law. They also say that law reviews, which they once looked to for help with their work, have become so theoretical as to become less relevant to the profession. I’m pleased to see innovation occurring in legal education, innovation that may reconcile those who prepare lawyers with those who practice law to the ultimate advantage of all.
