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The Broken Law School Model: What Is To Be Done?

Yale Law School

Here at Above the Law, we’ve been discussing problems with the current law school model for quite some time now. My colleague Elie Mystal, for example, has railed against the high cost of law school, the crippling debt taken on by many law students, and the scarcity of jobs waiting for them on the other side.

By now we’re all aware of the problems. What about possible solutions?

In the wake of David Segal’s most recent New York Times exposé on law school shenanigans, the Times’s Room for Debate section solicited perspectives from a number of experts — including yours truly — on whether and how to reform legal education.

The responses are quite interesting. Let’s check them out, shall we?

Here is the introduction to the debate:

Law school tuition is rising four times as fast as the cost of an undergraduate degree, which itself is soaring. Despite the high price, students are still flocking to law schools, even if it means going into heavy debt to enter a tight job market with few top-paying openings.

Should the standard three-year model of legal education, followed by taking and passing the bar exam, be the only path toward becoming a lawyer? Could law school be shortened, or should those three years of classes have a different focus?

My answer, in a nutshell: “No, the traditional three-year model shouldn’t be the only path. Yes, law school could be shortened.”

Here’s the start of my contribution, entitled Bring Back Apprenticeship:

Before the rise of law schools, lawyers were trained through apprenticeship. “Apprenticeship involved learning the law the way we expect someone today to learn plumbing: in the workplace, as a practical trade,” writes the Yale legal historian John Langbein. “You learn plumbing by working with, observing and imitating an experienced master.”

The modern practice of law, with a proliferation of increasingly technical specialties and subspecialties, is more complicated than plumbing. Formal apprenticeship has fallen by the wayside as a method for training lawyers. Adding apprenticeship back into the system could make legal education shorter, less costly and more practical.

How might this work in concrete terms? I sketch out one possible system:

The core of the legal curriculum is covered in the first year of law school. One could easily imagine law school, in terms of formal classroom instruction, lasting two years instead of three and costing two-thirds as much.

After two years, graduates could start working as apprentices for practicing lawyers and being paid, albeit modestly, perhaps like paralegals or medical residents. The bar exam could be administered at the end of an apprenticeship, or in multiple parts at different points in the process, like the medical board exam. Successful completion of an apprenticeship and passage of the bar exam would qualify an individual as a lawyer.

And what would be the advantages of such an approach?

Under this system, aspiring lawyers would stop accruing debt and start earning money at an earlier point. As apprentices, they would learn about the actual practice of law, addressing the common complaint among employers and clients that young lawyers, fresh out of school, lack practical knowledge. Employers who hire apprentices would receive inexpensive labor and could train these workers to their specifications. This model, balancing the theoretical and practical, is similar to what’s used in Canada and Britain, where legal education is less expensive and more practice-oriented than in the United States.

Harvard Law School

You can read the rest of my piece over at the New York Times (a publication I’ve contributed to before; see, e.g., here (opinion) and here (news)).

I should point out that my proposal is really more of a “think piece,” designed to generate discussion. I am not 100 percent committed to it, and I’m very open to criticisms and adjustments. I was also limited in how much I could say about it by the NYT word limit. I welcome your feedback and suggestions; if I receive enough material, perhaps I’ll write a longer and more detailed piece for Above the Law.

One of the reasons it’s just a thought experiment is that change isn’t happening anytime soon. As I point out later in my argument, the prospects for implementing any significant reform of legal education are dim, at least at the current time. There are simply too many entrenched interests that would oppose change. And, as both I and other contributors point out, one shouldn’t expect much support for reform from the American Bar Association. As you may recall, just this week the ABA effectively reiterated its commitment to the status quo (if you read between the lines of their messaging).

In any event, even if the debate over the future of legal education may be more theoretical than practical at this point, it’s still an interesting one. You can check out the collected perspectives on the subject over at Room for Debate.

UPDATE (2:35 PM): Here are links to some of the other pieces and my quick thoughts on them (again, refresh for the latest):

  • Reduce Credit Requirements by David Van Zandt: President Van Zandt, former dean of Northwestern Law, suggests that the ABA’s requirement of 80 credit hours of coursework can (and perhaps should) be relaxed. I agree. At the very least, I think law schools should be allowed to experiment with going below 80 hours, so we can see the empirical results and adjust accordingly.
  • Allow Anyone to Take the Bar by George Leef: This very interesting proposal, a call for radical deregulation of legal education, makes mine look positively tame by comparison. It’s even less likely to be enacted than mine, but I don’t know if I oppose it in principle (given my libertarian streak). It could be very good for consumers of legal services, although perhaps not so good for attorneys; I suspect it might decrease the income and cachet of lawyers.

UPDATE (2:45 PM):

  • It’s Not a Trade School by Kevin Noble Maillard: “Law school is not a trade school” is a nice sound bite, but is that true? Law school might not be a trade school, but it’s a professional school, and most students who attend ultimately want JOBS in said profession. If you’re looking to become a better critical thinker, there are other, less expensive options out there.
  • Improving, Not Overhauling by Rose Cuison Villazor: Professor Villazor eloquently identifies a number of possible downsides to shortening law school. I do think, however, that many of her concerns could be addressed — and perhaps even addressed in a superior way — by a system combining two years of classroom instruction followed by apprenticeship.

UPDATE (3:10 PM):

  • Learning to Think Like a Lawyer by Geoffrey R. Stone: Professor Stone, former dean of the University of Chicago Law School, argues that law school is needed to teach law students to “think like a lawyer,” as well as to teach various important courses in substantive law. This is all true (and it’s why apprenticeship standing alone might be insufficient). But it’s not clear why critical thinking and the applicable substantive law can’t be taught in two years.
  • Business school and most other master’s degree programs are two years. I know many graduates of such programs who are better at critical thinking than many lawyers. There is no law school monopoly on teaching critical thinking, writing, and other abilities needed by attorneys. I’d say: let some law schools experiment, so we can get some empirical data. (And grads of two-year programs would still have to pass the bar, in any event.)
  • Professor Stone writes: “[Clinical work in a law school] is a far superior way for young lawyers to gain [practical] skills than by doing scut work for attorneys who are often too busy to teach them.” This is a very important point. Any apprenticeship system would have to be structured in such a way so that apprentices would receive valuable instruction and not just be exploited as cheap labor.

UPDATE (3:20 PM):

  • A Priceless Degree by Linda Greene: Oh goodness. After going on at length about how a legal education allows us to understand law and power structures and the mysteries of the universe, Professor Greene states that “the cost of this quality education, all in, may exceed $200,000. The value of a new generation of law graduates prepared to take on these challenges: Priceless.” See my response to Professor Maillard, supra.
  • Three Years, Better Spent by Bryan A. Garner: Garner argues that law schools need to place greater emphasis on legal research and legal writing (his own area of expertise, where he is a huge guru). He’s absolutely right.

What are your thoughts on how to reform legal education? Your views are welcome, in the comments.

Bring Back Apprenticeships [Room for Debate / New York Times]
The Case Against Law School [Room for Debate / New York Times]

Earlier: Law Schools Head To The Bunker To Avoid New York Times Fallout
The Times ‘Unearths’ The Law School Scam, But Still Can’t Explain It
Quote of the Day: Are You Listening, NYLS Applicants?

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