Making the Third Year Optional

A recent article in the National Law Journal previews a potential new impetus for innovation in legal education: the specter of losing students in what would have been their third year of law school.

What if only two years of law school were required before students could decide to sit for the bar? New York’s Court of Appeals Chief Judge Jonathan Lippman’s comments indicate that there may be openness to the idea from a judge’s point of view. “[This] proposal challenges all of us involved in legal education to, whatever the length of law school, look at how we can do better.”

But it’s NYU law professor Samuel Estreicher who points out that shortening mandatory legal education to two years would do more than make law schools consider how to improve – it would incentivize innovation, forcing law schools to articulate what students will learn and how they will benefit from remaining in school through their third year. According to the NLJ article, Professor “Estreicher argues that making the third year optional would reduce the cost of attendance by one third, while giving law schools incentive to experiment with their third year curricula. If students don’t see value in that final year, they could take the bar exam instead and law schools would surrender the final year of tuition.”

This idea has been around for a long time. With the economic and employment picture for lawyers as dim as it continues to be, will it finally gain more traction? And if it did, would it necessarily change legal education in ways that benefit the students, their future clients, and society?

Many law professors and administrators could envision a better third year of law school, devoted to the integration of theory and practice, to deepening students’ understanding of professional role, and to becoming thoroughly proficient at the legal research and writing skills that require more time, attention, and repetition than schools are always able to provide.

But if the bar exam didn’t change, there would most likely be pressure for the third year to provide more and more bar exam prep instead. That could be a good thing, if the bar exam were better at measuring competence in more of what lawyers need to be able to do. Would changing the length of mandatory law school to two years, making the third year optional, have any chance of forcing innovation in the bar exam? I wish I thought so.

3 Responses

  1. I very much agree with this post. I have been so disheartened by the reductive nature of the discussion around the years of law school. I am not disheartened by the questions. We should be asking the questions of “value added” and cost. Nor is the question “should there be as many law graduates or law schools” an unwelcome question. But Margaret is right that nothing will change unless the Bar Exam changes and begins to value the kind of lawyers the country needs. Lawyers who represent those who do NOT have access to justice.

    The Legal Education and Admission to the Bar Section of the NYS Bar Association has sent to its Executive Committee proposals to experiment with changing the NY Bar. THE NYSBA annual meeitng is this weeki.

    NY could prioritize the development of professionals, clinical evaluation, public service and other critical components to its accrediting process and bar exam. Justice Lippmann would really help access to justice by working with the NYSBA to make the bar exam relevant to the people of NYS!

  2. I could not agree more with the above posts. I really wanted to write a response to the Estreicher proposal but had no time this week.. Lawyers not only need more than two years of study, instruction, and preparation, we need at least as long a period of professional development as doctors do. Not only is our work just as complex and demanding, to really do it right requires the same level of meticulous perseverance, the same dogged discipline to keep testing hypotheses and trying alternatives, the same capacity to maintain the highest level of task performance despite and through bone-weary exhaustion, maddened frustration, and frightening confusion. NONE of this is tested by the bar or fostered by the current bar passage imperative. Sadly, an appallingly large percentage of those who pass the exam handily and are admitted to practice (not all of whom I’d dignify with the title “lawyer”) lack not only this critical degree of professionalism, they lack the most rudimentary problem-solving and communication skills as well as anything more than the most superficial, rote grasp of the law — which they seem not to know how to find, learn, or use. Oh, and many of these bar-passers exploit and abuse clients wholesale while routinely deceiving courts and colleagues. Hapless clients and our entire society pay the price for their ignorance, sloth, and greed. The solution to this epidemic of slovenly lawyering is to reduce law school to the equivalent of business school???

    I don’t believe for a second that Sam Estreicher or any other proponent of this proposal would trust the most elementary legal problem of his own to someone who made it through the equivalent of the first two years of a standard law school, passed the New York bar exam in its present form, and did nothing more. What we need to be talking about instead are 1) how to make legal education at least as effective at medical education at inculcating the skills and virtues of a true professional, following the lead of both BP and Carnegie in exploring the differences between these forms of graduate education; and 2) how to design and implement multi-faceted assessment tools — demonstrably, this does not include the current bar exam — at least as effective as medical boards for determining which law school graduates truly deserve the professional license and can be trusted with clients. (Note: I am not blind to the serious problems in medical practice; the “at leasts” in the preceding sentence would be heavily underlined if this medium permitted.)

    The one point that Sam et al. do have right is that trying to layer such changes on top of the present three-year program would be prohibitively expensive and self-defeating. Much of the current law school curriculum has to be plowed under, like a field of rotting stalks, to resurface in a different form. This of course brings us back — always — to the Gordian Knot and Sword in the Stone, the inextricable dead hands of the many occupants of those privileged tenured faculty seats who insist that they cannot or will not learn enough of a new curriculum to teach it — although they might concede, paradoxically, that it would not be unreasonable to expect an average law student to be able to learn it. Law schools are so controlled by and have so much invested in this incredibly expensive and recalcitrant professoriate, there is virtually nothing left for genuine innovation. If there were time and money to do all that is needed in addition to all that already exists, this might not be such a pernicious and insoluble barrier to the two objectives identified above. But in reality, it is.

    I’m afraid that our esteemed Chief Judge is wrong when he asserts in yesterday’s NY Law Journal that “I don’t think there is anyone on a law school faculty or on the bench who would say, ‘This is crazy,'” http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202585158075&slreturn=20130023150007 . Settling for even less than we already have in the way of legal education and professional licensing is deeply crazy. Or rather, and perhaps this is a better way to say it: to think that it’s possible to solve the profound problems of access to and quality of justice by keeping everything about legal education and bar examinations basically the same, just less and over faster — yes, that is crazy.

  3. There is also a discussion of this issue on the ABA Journal Website.

    ABAJournal.com: “Reducing law school to 2 years would just add to lawyer glut, says law prof” (http://www.abajournal.com/news/article/law_prof_if_grads_lack_practice_skills_after_3_years_of_law_school_why_woul/)

    Proposal to let law students take NY bar after 2 years is worth study, says state’s chief judge (http://www.abajournal.com/news/article/proposal_to_let_law_students_take_ny_bar_after_2_years_is_worth_study_says_/)

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