Saturday, October 20, 2012

Getting to two

A lot of people think that law school should be just two years. I see a lot of sense in that proposal, but the usual strategy for getting to two (lop off the third year) is hard to achieve. It's not just that law schools will jealously guard that third year of tuition, which they will. It's also that bar leaders want law graduates to have more training rather than less. A few years ago I participated in a statewide task force on legal education, convened by our state bar association. Many of the practitioners began the discussion favoring a two-year degree. But, after detailing the content of this degree, most of them concluded that what they really wanted was a  three-year degree that included a year of clinical rotations. That's a good model, but it won't reduce the cost of law school tuition; nor will it solve the problem of too many JDs for too few jobs requiring bar admission.

The better way to create a two-year degree, plus generate a more realistic number of graduates with that degree, is to work from the other end. The MA proposal I floated yesterday is part of a strategy to move toward a two-year JD. Here's how:



First adopt the MA, which I would tentatively call a Master's in Legal Analysis. That gives immediate relief to some students who feel trapped on an expensive road to underemployment, but can't find a good way to exit. It also allows students and employers to explore the market for this particular MA, a topic I'll discuss further in another post. And, by allowing some students to exit, the MA will help reduce the total number of JDs. (I do think quite a number of law schools should close, and that at least some of them will. But the schools that remain will still be producing too many JDs, and it will be important to redirect some of their production.)

Equally important, the MA will challenge the brain-lock that many law faculty experience when thinking about legal education. We see the JD as an educational chunk, the all-or-nothing chunk that creates a lawyer. We don't think enough about legal training as part of a continuum that produces different levels of knowledge/skills for different types of work. The MA will make 1L year look more like a bridge between college and professional training. In college you learn to think and write as an educated person; in 1L you learn to think and write as a lawyer; in 2L and 3L you learn to practice as a lawyer. If that's true, then...

Second, revive the practice of admitting students to law school at the end of their junior year of college. The ABA rules permit this: Standard 502 allows law schools to admit students who have completed "three-fourths of the work acceptable for a bachelor's degree," and law schools used to do just that. When I was a 1L at Columbia in 1977, several of my classmates had completed just three years of college. The program was known as the "3-3" approach.

I suspect that colleges quashed the 3-3 programs; they didn't want to lose that fourth year of tuition (I mean, the altruistic satisfaction of giving students the full four years of liberal arts education they deserve). For the original 3-3 programs to work, I think colleges had to apply the 1L classes as transfer credits--and then grant the BA at the end of the student's first year of law school.

But the MA gives law schools a strong lever to bring back 3-3 programs: A student who enrolls in law school after three years of college will earn an MA at the end of her fourth year of higher education. That's pretty attractive, even if the college gets chintzy and refuses to award the BA. Colleges, though, may well cooperate; they too are facing market pressures and will want to satisfy applicants interested in professional degrees.

That effectively reduces law school to two years beyond the BA--with the added advantage of giving the BAs an MA for their work. Call it a 3-1-2 program.

Third, take a new look at the remaining two years of legal education, the ones that produce the JD. In a post-MA world, we will have already taught these students the basics of thinking and writing like lawyers; that happened in the MA year. And we will have weeded out the students who wanted a graduate degree in liberal arts (if there is such a thing, that was the MA year), who were going to law school to please their parents (an MA appeases at least some of that appetite), or who were horrified when they learned what law practice is really about. The remaining students will really, truly, irrefutably want to practice law!

That reality should lead very naturally to a mixture of useful doctrinal classes and practical experience.  I suspect it would also lead to more differentiation of JD programs. Students continuing for the JD would have a purpose beyond trying out law or getting an advanced degree; they would have already done that with the MA. Schools could begin building JD programs to appeal to those practical purposes. In my scheme, students would have the right to complete a JD at the school where they earned an MA, but they would also have the ability to transfer to a different program. If I earn my MA at a school that has strong JD programs in ADR and criminal law, but I've discovered a love for tax, I could apply to transfer to a school with a JD focus on tax. Which means...

Fourth, perhaps we can keep rolling back the years. After earning the MA, could a student focused on tax enter a JD program that offered the content of a current LLM in tax? Or, if not that full content, a focused, rigorous training that employers would reward?





39 comments:

  1. FIRST. YAY! Hell yeah!

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    1. Loser Painter.

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    2. That's not Painter. Not his style. Might be Brian? (Joke - not his style, either). Hell, it might have been me (but it wasn't).

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  2. Your second point could be a silver bullet where everybody wins. Law schools don't lose tuition, students save a year of tuition, and the ABA is satisfied.

    And I'm sure at the end of the first year (last year of college), the law school could award a BA with a major in law.

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  3. I suspect that colleges quashed the 3-3 programs; they didn't want to lose that fourth year of tuition (I mean, the altruistic satisfaction of giving students the full four years of liberal arts education they deserve).

    I'm actually not sure this is true: many colleges make a lot of money in their first-year classes, which stuff hundreds or thousands of students into lecture halls, with T.A.s providing breakout sessions, while third- and fourth-year students take much smaller, more individualized classes. But both groups pay the same amount per credit hour, so colleges might not have their financial interests as threatened as you might imagine.

    I'm a grad student in English lit at the University of Arizona (though I did attend law school for a year by accident), and a couple of professors here explained how the tuition incentives work for departments and for the university as a whole.

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  4. So what would this six-year transition from BA (year 4) to MA (year 5) to JD (year 6) cost? If the enrollee is paying JD prices in year 4, then all that we've saved him is one year of undergraduate tuition and fees.

    We still haven't addressed why it is that the toolbox one gets from law school is not more useful to the underemployed graduate. Legal employers have been trained to seek out the best performers in the core 1L classes from the best schools, regardless of whether it makes sense to do so. Nobody else seems to be rushing to hire this once-in-a-century flood of law graduates who can't pay their bills in the law, despite our training to Think Like a Lawyer. There's a presumption here that the education itself is worth saving in some form, and I'm not sure that anybody in the marketplace agrees beyond those who have achieved the traditional signaling of excellence by having top grades and being on the exclusive journals.

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  5. I have grave doubts about the claim that "[i]n a post-MA world, we will have already taught these students the basics of thinking and writing like lawyers; that happened in the MA year". Law students don't do a good job of this even in three years, let alone one. I don't feel that I have learned in law school to think or write like a lawyer; I think and write much as I did before, which is to say well. And many classmates who claim to have been transformed by law school still don't get it.

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  6. Yeah, with the CLE scam going on, the idea of less education is not going to get vary far.

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    1. ITLSS should shed some light on this too.

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  7. "But the MA gives law schools a strong lever to bring back 3-3 programs: A student who enrolls in law school after three years of college will earn an MA at the end of her fourth year of higher education. That's pretty attractive, even if the college gets chintzy and refuses to award the BA."
    This is wishful thinking. In what discipline can a student currently get an MA without a BA? In the real world, being a college grad means having a bachelor's degree. To think otherwise is crazy.

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  8. I have real doubts about the 3+3 proposal because I think it makes the k-JD naïf problem that bedevils the law worse. Frankly I would rather a matriculation requirement that required 2 years out of the BA program before going to law school and favoured those who worked as paralegals etc. before going to law school. I think they are generally better lawyers and better candidates for joining the profession.

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    1. 4 years of tuition < 6 years of tuition

      Who cares about the employability or naivete of the K-JDers? Not the schools.

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    2. I agree that some experience in the real world should be a requirement for admission. Northwestern generally does expect its applicants to have worked for at least a couple of years.

      In Canada, people as young as 19 go into law school—without even having set foot in a university before. In the main, these students are plainly immature. I can't imagine hiring as a lawyer a 22-year-old who had never even had a job.

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    3. I just see this Master Degree as avoiding the basic problem - there are too many kids (and I mean kids) going to law school who have no business doing so. Most will not and would not make good lawyers even if they were to get a legal job straight out of law school - and a good few are coming out of the T5.

      The vast over-recruitment of law matriculants, the belief that becoming a lawyer is an automatic key to the upper middle class - the idea that 3 years in law school and "hey-presto" $160,000 to start - is the source of the problem.

      Cutting law school places by 50-60% is the only solution.

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    4. So, oh great white god MacK, how old were you when you entered law school? Just curious.

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    5. I fully agree that most people in law school never should have been admitted. They'll never be adequate lawyers, never mind good ones.

      Cutting admission is indeed necessary. It will, of course, mean the closure of plenty of law schools.

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    6. Mid 20s - with 2 years of full time work, some legal related - and a prior background in science - physics, chemistry, math.

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    7. In other words, only people like you should get into law schools and only people like you might make decent lawyers?

      Typical MacKism.

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    8. No - it would have been better if I had spent a few more years doing other things before going to law school.

      What I do not think is that K-JD is desirable, that is to say that anyone should go to law school who has no work or life experience outside school - period. To be blunt, you think it is a MacKism - I think (since it is evident) that you are a naïf who should not be giving anyone legal advice because you have no life experience to give the advice from.

      Moreover, making someone take two years out between college and law school means that they would have to make a more serious choice of law school versus another option it would seem to me that a naîf (like probably you) who has never held down a job saw no real career choice other than law school - what was your pre-law degree in? Pre-Law? Poli-Sci and English?

      I'm not big on virgin Bishops giving contraceptive advice either

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    9. I have to say to some extent I agree with the proposal to require some sort of work. I went into law school later in life after working full time for several years and spending some time in the legal field as a paralegal and a legal assistant. When I went to law school I just thought that everyone was going to be serious and like minded. I was disappointed to find a room full of 80 22-23 yr old fresh out of college kids that were more concerned about getting wasted on the weekends than anything related to school. I found it very disheartening. As you can imagine, many people dropped out with a semester or two or three of debt because they never wanted to be there to begin with or freaked out when they had their first legal job and realized it isn't all Law & Order or A Few Good Men. Real world experience helps the future employer and helps the student have a clear idea of reality.

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  9. NB, there are quite a few 3+3 programs around, usually offered as a partnership between a specific college and law school. The exact setups vary, but the BA/JD program offered by Shimer College (my alma mater) and Chicago-Kent involves the first year of law school also being counted for undergraduate credit, so that students receive their BA at the end of 1L. (In Shimer's case this means scrunching the core curriculum into 3 years, which is doable but doesn't leave much room for electives.)

    I'm agnostic on the value of these programs, as they seem to require locking in one's career goals at an implausibly young age. But I guess some people make those decisions early, and it certainly makes sense to save a year's tuition if you can.

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    1. Also you don't have to take the LSAT.

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  10. "It's not just that law schools will jealously guard that third year of tuition, which they will. It's also that bar leaders want law graduates to have more training rather than less."

    To the first point, the schools can "jealously guard" whatever they want. But, doesn't the ABA or state licensing board hold the ball on this one? What I mean to say is, can a state (or jurisdiction, whatever) just up and say, "We will now allow people to sit for our bar exam, obtain a license to practice law, and work in this state as attorneys if they obtain a two year degree such as the one offered at one of our state's fine law schools"? (I ask this because I really don't know the answer.)

    To the second point, the "bar leaders" must have their friggin' heads buried in the sand (or wedged up their own backsides). My third years included such stand-outs as "Sports Law" and a bunch of other wastes of my time. Students are currently not getting any "more training" by being forced to 1) pay for, and 2) endure what passes for a third year of study in most (if not the overwhelming majority) of legal education programs in this country.

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  11. 1. The first year of law school is not the equivlent of an MA. During the first year of law school, students are superficially introduced to some basic legal concepts. Please just think about what other graduates students have to do to earn an MA. They have to have majored in the subject at the undergraduate level and if they haven't, then they will have to take an additional year of course work which means that they will study a subject for two years. They have to pass language comps and write a publishable thesis. For an MBA, students have to take two years of fairly intense course work. Does anyone really think that 30 hours and 9 exams later, law students should be awarded an MA? I see an issue of academic program integrity here.

    2. DJM's task force stated thaat they would like to see clinical rotations for the third year. They have identified one of the main problems of US legal education. In no other country is legal educaation so disconnected from legal practice. In the US, one can obtain a law degree without ever even speaking with a practicing lawyer. In all other countries, training with lawyers is part of the legal education and it would not be possible to get a license without such training.

    3. My law school had the 3-3 program and a few students were enrolled from the junior year. They all were in the bottom half and every one of them said that they wish that they had their final year in undergrad. In your early 20s, a year extra of maaturity really makes a difference.

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  12. Can a state tell the ABA to go jump in a lake? Yes. See the discussion in In Re Culver, from Montana, notably Trieweiler J's dissent:

    http://data.opi.mt.gov/bills/2007/Minutes/Senate/Exhibits/jus28a15.pdf

    Select quotes:

    "why the legislature would give a tinker's dam [sic] whether we required graduation from an ABA-certified law school as a condition to taking the bar exam is beyond me"

    He characterizes the ABA as a "national trade organization" and criticizes its "arbitrary standards".

    "Apparently, the states of New Hampshire, Maine and Wisconsin have found alternatives to requiring ABA accreditation. Certainly, in the interest of fairness, the members of this Court should be no less up to the challenge."

    Solving the problem of access to justice is not "possible based on the arbitrary straight jacket [sic] in which the American Bar Association, a mere professional trade organization, has placed legal education".

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  13. Great find, anon.

    Another thing of note are the concurrences, where the first judge says he doesn't want to admit non-ABA grads because it might harm the U. of Montana by sending the wrong message to the legislature and the other judge and a second judge agree with him.

    Protectionism and abnegation of their duty in just a few pages. Great profession. At least the dissenter knew the gig was up 10 years ago.

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  14. A lot of law students stay in law school after 1L, whether they should or not, because they figure what the heck else am I going to do. I don't see the MA really changes that. Maybe if the MA was good enough to get a job like document review making $30 hr more people would drop out after first year. This would give them the opportunity to work a decent job while they could think about what they wanted to do next in life.

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  15. I like the way LawProf is a bomb thrower, while DJM is an incrementalist. Good contrast.

    But, as much as DJM's ideas make sense and are realistic, I believe that change will only come if the law schools face an existential threat.

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  16. The "bar leaders" referenced by DJM want law schools to use the first year to sort students into the percentage they plan to hire, which generously is at most half, and the percentage they have no plan of hiring. They then want the law schools to train all the students during the second two years, so that the half they plan to hire are trained at the expense of all the students, including the half they do not plan to hire, regardless of how well they do during the second two years.

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  17. I can't figure out from DJM's post what value the MA would really add besides the psychological bookend that is a "degree". If anything, this would flood the market with even more people who want to "try out" law school, and would increase competition for lawyerish jobs that don't require bar admittance. In a world where there are already too few bar-required jobs to go around, the MA holder would be at a disadvantage to unemployed JD holders who also compete for those jobs.

    Let's not get distracted from the real problems at hand: there are too many new lawyers and law school costs too much. Unless the MA drastically reduces the number of people chasing lawyer jobs (a dubious proposition at best, and I can imagine scenarios where the opposite could occur - for example, think of a world where the MA degree significantly increases 1L classes and then a large number of students who originally only wanted the MA choose to pursue the JD as they discover job opportunities for the MA are even worse than a JD and now they're already $50K in the hole for tuition), this is proposal is just rearranging more deck chairs.

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  18. I'm thinking a little differently from DJM. While I recognize the benefit of students getting something at the end of first year (which would encourage them to drop out if they didn't want to pursue a JD), I agree w/ others who have pointed out that having yet another meaningless degree would do little to solve the problem and probably wouldn't be the incentive some hope it would be. And if a JD is currently meaningless, I doubt that an MA in the same study area is going to be more meaningful. In fact, it will mean less because it will signal that the person did not even finish law school. So, you still have the problem of the individual being unable to get employment, which still results, then, in the person having lost a lot due to his or her 'investment.'

    But thinking along the lines of DJM and realizing the value of having something at the end of the first year (or first year and a half, as I propose later), I instead think the objective might be accomplished by giving first year students a paralegal or legal assistant or legal secretary certification w/ a legal studies degree.

    First, the employment trend right now is towards hiring those w/ practical skills and this would fulfill that need. So practical certification would help these students get employed much better than a MA w/ an impractical application. The first year of law school wouldn't be a complete waste because these students would actually graduate w/ something that would help them get a job. Also, it would force law schools to have to teach some practical skills, like how to file motions, etc., something that is sorely needed. These students would actually have an advantage in the job market, because they would know practical skills as well as some of the legal theory behind those skills - a unique combination. They would be a combination between a paralegal and a lawyer. Perhaps the program could be a year and a half as opposed to one year to accomodate learning the additional skills.

    And those that go on to get the JD would also benefit because should they decide to continue to become an attorney, they will also have much needed practical skills in addition to lawyering skills, which many will end up needing because they will probably have to go solo and will be unable to afford secretaries or legal assistants. And the lawyers that can do both skills would have an advantage in the hiring market I would think. I have already seen evidence of this when a recent employer asked if I knew how to file motions, etc. He was looking for someone who could write like a lawyer and do the lawyerly stuff while still having a knowledge of the technical stuff that he didn't know how to do because he had been practicing his whole life.

    I realize that the biggest downfall to this plan is that many people who go to law school to take their place in upper middle class society or to fulfill their parents' dream of being a lawyer will not like to think that they are learning skills that will allow them to become a legal secretary. But trust me, when they graduate, whether it be after a year and a half or three years and are fighting in the job market, they will quickly come to see the use of having such skills and will be grateful. And these don't have to be billed as legal secretary or paralegal skills - they could be billed as practical skills. So perhaps the theoretical MA could be a Masters of practical legal skills w/ paralegal certification.

    As for the common suggestion bandied about about reducing law school to two years, that would never really solve the problem. If law school tuition continues to escalate and we do not address that, then cutting law school down to 2 years just means that w/in 5 to 10 years, everyone would be paying the same for 2 years of law school that they are currently paying for 3, except they would now be getting less. Nothing solved.

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    1. I`m sorry but you seem clueless...October 21, 2012 at 12:21 PM

      "I instead think the objective might be accomplished by giving first year students a paralegal or legal assistant or legal secretary certification w/ a legal studies degree."


      I'm sorry but you don't seem to have a clue what a paralegal or legal secretary does. What you propose is worthless in that regard.

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  19. Here`s what you call a recipient of the worthless MAOctober 21, 2012 at 11:51 AM

    Call them "para-lawyers" after the DeVito character Deck Schifflet in Rainmaker.

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  20. Again, the first year of law school is not equivalent to a master's degree so awarding one is just printing a diploma for the student who drops out.

    If you want to give them a degree after the first year just give the student the degree of M.J.D. Minimus juris doctorate.... Hell, they may have paid up to $55,000 for this fine degree.

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  21. LSAT as gatekeeperOctober 21, 2012 at 5:36 PM

    Listen, folks, this is one very simple thing that would fix all the problems.

    Law school admissions require 170+ LSAT score.

    That's it. That's all. 170 or greater, or you're not accepted.

    Done.

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    1. Or just get rid of attendance at an accredited school as a requirement for becoming an attorney. Let the market take over the legal practice, and allow this disgusting "profession" to complete its slow and painful death.

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  22. "Or just get rid of attendance at an accredited school as a requirement for becoming an attorney."

    California already has that, doesn't seem to help with much.

    "That's it. That's all. 170 or greater, or you're not accepted."

    Never happen, minority enrollment would fall off a cliff.

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