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?