Yes, New York, It's Time

And now for a statement against interest.

The National Law Journal reports that New York is considering whether to allow students to sit for the bar after two years of school.  That idea has been kicking around for about 30 years.  It's a good idea and I hope New York adopts it.  Not because the third year always costs more than the benefits it produces, but because it may, depending on the circumstances.  Schools and students should be allowed to experiment with structures that make legal education more efficient. 

The article quotes one professor as saying that "It's unlikely that the way to prepare our students for a toughened competition, global and otherwise, is to assure they are less fully educated than their predecessors of the past 75 years."  Objection: Assumes facts.  Even apart from the questionable notion that the third year is better preparation for rigorous competition than any conceivable alternative structure, no one is proposing that a third year be forbidden, and demand presumably will reflect the value of that year at least as well as statements by those of us who are selling it.

DM

Comments

[John Steele]

Hear hear. And think about how that option will change what the students will expect from law school. I presume they will want (1) preparation that helps bar passage, and (2) classes that address the meat and potatoes of practice. Will those law schools change the curriculum in light of the needs of the students electing the option?

[Milan Markovic]

I also favor this idea, but I think we have to acknowledge that students who sit for the bar after two years are far less likely to be "practice ready" than their peers who complete the entire three years.

The MBE tests: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. In addition to the foregoing, New York tests Business Relationships, Conflict of Laws, New York Constitutional Law, Criminal Procedure, Family Law, Remedies, New York and Federal Civil Jurisdiction and Procedure, Professional Responsibility, Trusts, Wills and Estates, and UCC Articles 2, 3, and 9.

Students won't necessarily take courses in all of these subjects, but they'd be well-advised to take most, and this leaves precious little time for other subjects, let alone clinics and skills courses.

One (unintended?) benefit of this proposal is that it will force law schools to justify the third year of law school, and we're already seeing some interesting experimentation on this front.

[John]

Perhaps requiring two years of full time work experience prior to Law School would better prepare young lawyers for the competition and realities of the private practice of law as a career. The initiative required to find work, succeed for two years and then leave to return to school would produce a motivated, focused student body that may improve the quality of their scholarship. Further, the working perspective is a useful thing. That gained from working would likely sift the applicant pool, providing candidates for admission that are more interested in the practice of law. Coupled with a two year educational program, the candidates sitting for the exam would be a year older, but have a greater pool of experience.

[Stephen Gillers]

New York is NOT "considering" doing this. My colleague Sam Estreicher wrote a short advocacy piece supporting the idea and the school's Institute of Judicial Administration (which Sam co-runs) has sponsored a discussion of the idea this Friday to which some Court of Appeals judges (including our graduate, the chief judge) and members of the Board of Law Examiners have been invited and are said to be scheduled to attend as listeners. That's a long way form considering anything and there are sure to be many objections. Among them:

a. A person admitted in NY after 2 years would not have a degree recognized by the ABA and would likely have a hard time getting admitted in other states should he or she wish to move. If the idea has traction, it would have to win approval at the ABA or at least acquiescence.

b. If the problem is that student debt after three years is so high that students can't take low paying jobs and repay their debts -- although recent (and by some unnoticed) changes to loan forgiveness at the federal level may make this less of a problem -- and if the idea is that with 2/3s the debt, they will be able to take those jobs (and repay their debt), isn't it necessary in the first instance to ensure that we're preparing students for jobs that are actually there in fact, and where incidentally they won't be edged out by 3-year graduates who may not have the same debt? In fact, isn't the real problem here the absence of jobs for lawyers for people who need lawyers and can't afford them?

[David]

Fair point, Steve. It would be more precise to say that influential people in New York are considering this and I hope formal consideration follows.

Let me try to persuade you that this is a good idea for our students and their clients.

On your point (a), while it is true (I assume) that Duluth and Des Moines, Boise and Butte, Topeka and Texarkana might all turn their noses up at students with 2-year degrees, Los Angeles, San Francisco, Palo Alto, and San Diego would be as welcoming to them as we are to just about anyone. New York students on a 2-year plan would have at least one place they could go.

More seriously, changes in a small number of states could imply changes in a large fraction of jobs. I do not think the prospect of a partial collective action problem should be a warrant for inaction. I agree that the risks attendant to non-compliance with ABA norms should be disclosed to students, but should we not allow them to assess for themselves how important mobility is to them?

Your point (b) seems to me to raise three issues. The first of these is training. Opinions vary on how well school prepares students for practice, thought I notice opinions vary more between those groups than within them. If we assume such training is desirable, as I take your comment to imply, consider the possibility that courses are more likely to provide such training if schools must persuade students to enroll than if demand is mandated by rule. Making the third year optional is more likely to increase responsiveness to the demands of practice than is any alternative I have heard floated. (I propose we can agree that upper-division courses are not uniformly or inherently responsive to practice demands.)

The second issue is competition. It may be that students with 3-year degrees will edge out the two-year sorts in some markets. I would not be surprised to see that happen in patent litigation and M&A, though I note Milbank (and SASMF, I think) have partnered with HBS to provide remedial business training for their new associates. But I know of no reason to presume that this would be the case for all types of lawyers and, even if it were, all that would follow is that students would sign up for the third year and the reform would do little good. But even then I can see little harm it would do, and I would urge caution in allowing presumptions regarding the results of competition to serve as a premise for avoiding competition.

The third issue is money. I think it would be useful to be precise about why loan forgiveness might imply that there is little or nothing to worry about. Forgiveness means, as I understand it, not avoiding debt but collectivizing it. Cab drivers and janitors pay tiny fractions of law school tuition and that is all right because the fractions are tiny. I think it would be interesting to discuss on the blog the question whether debt forgiveness is actually a socially acceptable answer to the law school cost question. The justifications I have seen—there are lots of subsidies to education, such as tax exemption, or, other countries subsidize so it is OK—do not strike me as strong positive reasons to subsidize. Presumably a positive externality story will enter to do the work, though we can discuss that if and when it does.

But even if one accepts that subsidization is acceptable, that fact does not imply indifference to the amount of the subsidy. It is no warrant for unnecessary cost. It follows that while subsidization may lessen the burden on students it does not answer all the relevant social welfare questions.

A good point against me, to return to my invocation of coastal California, is that you do not actually need a third year of law school to practice in this state. Graduates of non-accredited schools may do so, and we even maintain an apprentice route (which, as a sort of dogsbody legal assistant, I seriously if only briefly considered). We have not solved the problem of providing lawyers to the large number of people with big needs and little money.

I think there is reason to believe, however, that some gains might be made on that front if schools with stronger brands are allowed to experiment with different structures. It might come to nothing, I admit, but I see little reason to believe it would come to harm.

DM