Liberalizing Legal Education

Liberalizing Legal Education

“If you are absolutely determined to make a lawyer of yourself the thing is more than half done already. It is a small matter whether you read with any one or not. I did not read with any one. Get the books and read and study them in their every feature; and that is the main thing.”

– Abraham Lincoln (quoted in The Law as Vocation, p. 26)

Law school is something of an institution in American society. Individuals taking that track still accrue much of the cachet which the profession has traditionally claimed. But its usefulness as a means of preparation to practice law is not a given. Prominent attorneys, such as former President Barack Obama, question the merits of a three-year program. The normal JD’s core curriculum doesn’t even fill 2 years of classes. As a result the remainder, about a year and a half’s worth, is taken up with elective courses that are less likely to be applicable for the average law student. Of course there are niche areas of the law, the practice of which requires additional study, and electives are one means to that end. Every lawyer should know the basics of contracts, property, and civil procedure, but it doesn’t make much sense for someone looking to practice criminal law to learn the finer points of patent law or vice versa. 

Usefully, however, there are disaggregated degrees tailored for just such purposes: the Master of Laws (LLM), generally offered with a range of specializations, provides a post-JD opportunity for advanced study of the law. Switching to a shorter, narrower JD curriculum with the opportunity to pursue a separate degree specializing in a particular field of law would require some reworking of the legal education system, but this is far from impossible.

But more generally, attorneys-in-training can’t be expected to study every category of law during their schooling — no matter the length of formal education, there’s no substitute for on-the-job training, and developments in the law require even veteran attorneys to keep themselves up-to-date on developments in the field. As it stands, the JD’s bundling of baseline legal knowledge with, in some cases, 2 years’ worth of elective courses unnecessarily increases costs of legal education, both in time and money. This is translated into higher costs for clients, not just for major corporations that regularly need lawyers, but also for individual clients who require services more particularized than they can get on LegalZoom.

But inefficient legal education persists. If the JD remained a bit excessive but still generated graduates capable of jumping into a legal career from day one, at least it would serve that purpose. What may be most galling is that, after 3 years of study and tuition (nearly always on top of an undergraduate diploma), the newly minted JDs become buyers in the bar-prep industry. This is certainly less costly than a JD, but is still a four-figure expense. In spite of full-time study of the law for multiple years, aspiring attorneys are not then adequately prepared to leap the final hurdle to practice law, leaving the JD’s 3-year value a bit blurry.  

While offering limited utility beyond the bedrock curriculum, law school imposes high costs: In the Department of Education’s latest College Scorecard, the median debt for law school grads was nearly $120,000. Following these steep outlays, many law school graduates end up in the wrong lump of the well-known bimodal distribution of salaries.

Several alternatives to this incoherent sequence would be marked improvements. An incremental option would be to shorten the standard JD to only 3 or 4 semesters. Costs would decrease for any one lawyer due to diminished overhead, and because the supply of trained lawyers would be higher.

Another option is simply to collapse the 2-degree regime into 1: nix the JD or, nearly equivalently, remove bachelor’s degree requirements for law school admission. A few states currently allow individuals to take the bar without a JD (CA, VT, WA), with apprenticeship requirements (called “reading the law”); Maine and New York allow aspirants to sit for the bar with only some law school. JD requirements could be replaced either with reading the law independently (with or without apprenticeships) or undergraduate study of the law. In several European countries and our common-law cousin the United Kingdom, law is offered as an undergraduate program after which individuals may take a bar exam. Many require multiple degrees, but the first is often a 3 year program, and the second is usually a short Master’s degree, so the combined length is comparable to an American bachelor’s degree. Others have no education requirements at all, only professional exams. 

The bar exam, of course, is also jam-packed with anticompetitive slop. Its defenders contend that “there are just too many law schools, pushing too many weak graduates through their programs in order to keep the tuition revenue flowing to be confident that an across-the-board diploma privilege [an alternative to the bar] would serve anyone except perhaps law faculty and deans who would be relieved of having to worry about bar pass rates.” But the market for risk of non-barred lawyers is not clearly high: many insurers of professional liability were not at all concerned when their policy-holders hired lawyers who had not taken the bar exam due to the coronavirus. The exam’s format is also incongruous; Aaron N. Taylor, executive director of AccessLex’s Center for Legal Education Excellence, points out that a lawyer’s most essential work is reading the law and understanding how it has been construed in the past, not memorizing laws, yet memorization is one of the bar’s primary components. There is simply no compelling reason why a diploma from a 3-year accredited program shouldn’t be enough to grant entrance into the legal profession, perhaps under the wing of a more veteran attorney for a few years.

And the bar examination covers the waterfront. A basic understanding of core legal principles and at least a passing familiarity with other fields of law is valuable, but it just doesn’t make sense for a corporate attorney to know the exclusionary rule and its exceptions. Though not perfect, the model to practice patent law is a decent model. The patent bar is a separate exam focused on the particulars of patent law (though an applicant must still pass the regular bar examination).

This then is the consecrated process of becoming a lawyer in the United States: completing an undergraduate degree, which is, at best, mildly related to law school’s subject matter, then persevering through 3 years of education in the law, which is for some reason inadequate preparation for the bar; then, prospective attorneys bear down for at least a couple months of bar preparation, so that they can then practice some narrow slice of law which was a fraction of their education’s coursework and of the bar’s contents. 

In response to calls for reform of this byzantine travail, the ABA has offered responses as creative as “The A.B.A. takes the position that the most appropriate process for becoming a lawyer should include obtaining a J.D. degree from a law school approved by the A.B.A. and passing a bar examination.” Perhaps this is an example of a 21st century guild trying to protect the rents of its members. Perhaps this is an institution which is resistant to change out of respect for tradition. Perhaps the very notion of streamlining for efficiency’s sake offends gatekeepers— nobody likes being told that there’s fat to be trimmed in their profession. Regardless, there are countless reforms available to make legal education more affordable and rational while lowering the barrier to entry for aspiring lawyers and, by extension, their would-be clients.

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By |2021-10-15T09:03:55-07:00October 15th, 2021|Blog, Occupational Licensing|