My Two Cents on Two Years - Commentary on reducing JD curriculum from 3 to 2 years

I am rather certain that by now anyone who is reading this is aware that President Obama made an off-the-cuff remark at SUNY Binghampton that the curriculum for a Juris Doctor should be reduced from two years to three years so as to keep costs associated with law school tuition down. In regards to ridding law school of its third year, he said, “[Law students would] be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.” (There has been some views expressed that cutting the number of credit hours wouldn’t actually cut the costs. And there have been views expressed that being there are already too many lawyers, two year JD programs will just increase the number of out-of-work attorneys, which wouldn’t be economically beneficial to law school graduates either.

However, assuming that there would be an economic benefit to the law school graduate by decreasing their course load and thus tuition, I contend that both the graduate and society would generally be at a loss as a result of such a reduction. Let’s first assume that law schools have some obligation to prepare students for the bar exam, an assumption supported by the ABA Standards for the accreditation of law schools. (I firmly believe that a legal education is not only valuable to aspiring lawyers, but to some many other professions). In any event, using it as an example, the Tennessee Bar Exam tests examinees on approximately fifteen different subjects (or departments of law in Dworkinian terms). I estimate that at a minimum, those subjects would require fifty credit hours worth of instruction. Okay, so why not just require students to take fifty credit hours? (Nashville School of Law requires forty-eight credit hours, I believe). Well, the Tennessee Bar Exam includes the Multistate Performance Exam (MPT). According to the National Conference of Bar Examiners website, the MPT requires examinees “to perform one or more of a variety of lawyering tasks. For example, examinees might be instructed to complete any of the following: a memorandum to a supervising attorney, a letter to a client, a persuasive memorandum or brief, a statement of facts, a contract provision, a will, a counseling plan, a proposal for settlement or agreement, a discovery plan, a witness examination plan, or a closing argument.” So I estimate that in order to teach all of these skills, and teach them within the context of other related skills, you would need approximately fifteen credit hours – if you wanted to do it somewhat well. So we are now at sixty-five credit hours. Well, at this point, we are only considering things tested on one state’s bar exam, and the bar exam tests a minimal competency to practice law. Well, that isn’t what I want from my attorney. I want her to be far greater than minimally competent; I want her to be excellent.

And there are other things I would like. I would like to be afforded the opportunity to breathe clean air. I would like carcinogens to be left out of my drinking water. I would like for my intellectual works to be afforded at least some protection. I would like the price of bananas (my almost daily breakfast) to be at competitive rates. I would like to be protected from fraudulent activity in all aspects of my life. I would like so many things that I frankly take for granted. I take these things for granted because I am generally protected from them. I am protected from them because of lawyers who practice in areas of law which concern these things; they are the defenders of my life, liberty and property. I do not expect that the bar examiners require every bar examinee to be tested on all of this subject matter, but I expect someone to know about it enough so I can be protected.

We live in an era of specialization. We need experts in environmental law, intellectual property, employment law, antitrust law, securities law, so on and so forth. So I think we need some more credit hours to allow law students to have a background in these areas. And then there are some other courses I think all law students should take, such as Statutory Interpretation, Jurisprudence and Administrative Law. None of these things are actually tested on the bar exam, but I find them to be important – you need not.

We also need externships and clinics, or in-class simulated lawyerly work.

Now, allow me to take a step back. I previously mentioned that I think fifteen credit hours may suffice for skills classes. When I was in law school, I was required to take a total of four credit hours of skills classes (I took more). In those four credit hours, I was allegedly taught to conduct legal research, write a predictive memo, write a client letter, write an appellate brief and engage in an appellate oral argument. After taking those two classes which comprised my four credit hours, I would have to admit that I lacked sufficient competency to actually do those things.

For the most part, I taught myself legal research. I conducted legal research on my own almost daily just for fun – and to expand my skills – really for fun though. It was really only after a summer of writing appellate briefs for a prosecutor’s office that I really felt comfortable with legal writing. It was after another summer of writing appellate briefs and responding to PCR petitions that I began to excel at legal writing. It was only after one moot court competition and four or five appellate arguments in court that I found a certain comfort level standing and speaking inside a courtroom. And I learned an incredible amount from my year as an extern with USDOJ’s Antitrust Division. It was these opportunities for me to refine my skills outside of the law school curriculum that helped me excel. I probably have taken those opportunities for granted. Not every law student has the same opportunities.

So I agree with the president that clerkships and working as an attorney will help law school graduates in the practice of law, but how many of those opportunities are available these days? To state it simplistically the classic view of modern legal education was that students would attend law school where they would learn “the law” (and perhaps acquire some skills along the way), but learn the ins-and-outs of legal practice by way of being mentored by the attorneys for whom they worked under as associates. Well, that model is dying if not yet dead. Allegedly, clients have decided that they no longer wanted to pay the costs associated with law firms training young associates, so what firms want in their associates are practice-ready attorneys. Will law students be given a statutory right to a clerkship? No.

So assuming that I never had a clerkship and never had an externship, where would I have been when I graduated law school? To be honest, I would probably have been in library school since not only do I love legal research, I had a sufficient amount of practice with it by the time I left library school. But would I have been competent to practice law without those opportunities, without a mentor? I think the answer is a definite “no.”

Well, maybe the President was unaware of this but for the last couple of years there has been an increasing discussion as to the proper role of law schools. There’s actually been a near century debate as to the proper role of law schools, and that debate pits legal doctrine against legal skills. I might agree with the President that we only need two years of law school, but only if we were to accept that only the doctrine of law (as found in various departments of law) is the only thing that should be taught in law schools. So really, I don’t agree with the president. A legal education needs to be filled with legal doctrine, but it also needs to be filled with an abundance of training in legal skills. Law schools, perhaps Harvard, Yale, Chicago and the like aside, must do all they can to make their graduates as ready for practice as possible. The old model must die because the practice is changing. In its stead, the phoenix must rise again. The answer is not to chop off a year from law school. The answer is to change what is being taught.

On a side note, I doubt most law students are like me – “research for fun,” he says. This semester I will be spending about forty hours teaching 1Ls legal research. I can still use some more time. I want them to know as much as possible about the art of research. I want to provide them with as much practice as possible so that when they get out they don’t waste their time and everyone else’s time treating WLN like they treat Google. But I, again, am lucky. Most of my friends teaching legal research don’t have a third of that time to teach legal research to all law students. And maybe someone should do a study to determine if law students truly need more training in legal research, legal writing, legal drafting, oral advocacy, ADR, etc. Oh there is a study? There’s more than one? Hurry, someone alert the President of the United States!

So reducing credit hours, thereby costs to the student, may provide an immediate economic benefit to the law school graduate. However, I fear that the potential detriment of having law school graduates ill-equipped to practice law and without subject-matter specialty would ultimately create a greater cost to the bench, the bar and society. But what do I know? I am not in my second term as President of the United States.

So there’s my two cents on the two year plan.

Reprinted with permission from the author, and Law Librarian Blog, A Member of the Law Professor Blogs Network