Legal education took a major hit in the last economic downturn, and has basically been in an extended crisis for the last decade. Enrollment numbers dropped to levels not seen since the end of World War II (when there were significantly fewer law schools) and the decline is just now starting to level off. Law schools have had to lower their standards, shrink their classes, or both to stay alive. Law graduates from prestigious schools and for-profit bottom-feeders alike are often saddled with six-figure debt, and only a fraction of law school grads each year will land jobs that pay enough to actually pay down that debt in any reasonable period of time. There have been a few attempts at innovation in the last few years to address these problems—the accelerated JD, the use of the GRE instead of the LSAT—but they don’t do enough to fundamentally “fix” legal education. I’ve got three big ideas that could benefit law schools, their students and graduates, and the legal profession, which I’ll discuss in three blog posts. Here’s the first.
A Real Two Year J.D.
There’s an old adage about law school that in the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. Most law schools do not have required classes in the third year of law school and many students already have job offers that do not require them to work hard for the highest possible grades. A smart law student may use her third year of law school to prepare for a specialty in law that she wants to practice. I spent a semester studying EU law in Holland and spent my other semester taking classes called “Religion and the Law” and “Space Law”—and I was not alone in perusing these esoteric and impractical areas of study. I enjoyed my third year of law school, but it did not in any way prepare me for my legal practice.
The problem of the third year of law school has been discussed by lawyers and legal organizations of all stripes, including former President Obama (“I believe that law schools would probably be wise to think about being two years instead of three years”) and even the ABA (whose Task Force on the Future of Legal Education suggested state “bar admitting authorities could … accept applicants who … have fewer hours of law-school training than the Standards require.”)
Lopping off the third year of law school could make it more affordable in terms of tuition (a third less costly) and opportunity cost (one less year of not earning a salary), possibly opening up law school to many who cannot afford it today and those who do not want to take three years off at the beginning or middle of their working lives. It could also be more attractive to people who do not necessarily want to practice law but would like to understand it better (although I think one-year certificate programs would be a better answer for them, as I will discuss in a future blog post). And for law graduates who do not end up in high paying jobs, their law school debt would be less burdensome.
A number of schools have experimented with two-year “accelerated JD” programs, but this it not what I’m talking about. These programs just cram three years of school into two years, charging the same tuition and removing the all important summer employment opportunity. In other words, they don’t lower the tuition cost, and the lessened time out of the work force is offset by the opportunity cost to get summer work experience.
So what are the downsides to a two-year JD? Well, not everyone sees the third year of law school as a waste of time. As the late Justice Scalia said in William & Mary Law’s 2014 commencement address, “It seems to me that the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession—the profession of law.” Scalia further noted that the modern legal profession includes areas of law that did not exist when he was in law school “including Title VII, the Americans with Disabilities Act, and the Employee Retirement Income Security Act; several major national security statutes, including the Foreign Intelligence Surveillance Act, the Patriot Act, and the Aviation and Transportation Security Act; the Clean Air Act; the Freedom of Information Act; the Foreign Sovereign Immunities Act; the Affordable Care Act; Sarbanes-Oxley; and I could go on.” There is something to be said about having an opportunity to take more specialized classes, though the lack of required classes and student burnout certainly contribute to many students not using the third year for that purpose.
Another downside to abbreviating law school is that it could severely impact the tuition money that law schools bring in. Although some of this loss may be offset by an increase in enrollment, it probably wouldn’t be the 33% increase that would be necessary to offset the loss in third-year tuition. One way schools could offset that tuition revenue decline would be to increase their LLM offerings, and indeed there would likely be an increase in the demand for LLMs for specialized areas of law. Law schools could offer three-year joint JD/LLM programs that would allow those who need further study in a specialty to get it alongside their JD education. And, as I’ll discuss in another post, law schools could offset some of this loss in tuition by offering one-year certificate programs to people who want to learn about the law, but not become practitioners.
But don’t be looking for a true two-year degree anytime soon. Most law schools are too risk adverse to try something that novel, especially when it has a possible downside of a large economic loss.
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