Make Law Schools Earn a Third Year

This article originally appeared in The New York Times on January 17, 2013.

By Daniel B. Rodriguez and Samuel Estreicher

Today, leaders of the New York bar, judges and law school faculty members will gather at New York University to discuss a proposed rule change. If adopted by the state’s highest court, it could make law school far more accessible to low-income students, help the next generation of law students avoid a heavy burden of debt and lead to improvements in legal education across the United States.

The proposal would amend the rules of the New York State Court of Appeals to allow students to take the state bar exam after two years of law school instead of the three now required. Law schools would no doubt continue to provide a third year of legal instruction — and most should (more on that in a bit) — but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.

Like many industries today, the legal profession is in the midst of a period of destabilizing change. Myriad services are now being outsourced (often abroad) to nonlawyers, and the number of positions with large firms is dwindling, making it harder for graduating students — many of whom are saddled with six-figure student-loan debts — to find work at the outset of their careers that can even begin to pay off their obligations.

Such prospects are discouraging many young people from pursuing law degrees, and pushing away lower-income students the most.

Part of the problem is that tuition and fees (which topped $40,000 a year, on average, at private schools in 2012) have been soaring, and law schools must do a better job of containing these costs. We also need more financial aid for students. But a straightforward solution — one that would shave the current law school bill by a third for those who take this option — is simply to permit law students to sit for the bar exam and begin practicing even if they have not received a law school degree.

While this wouldn’t increase the number of available jobs, a two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts.

The rationale for reforming the three-year rule, however, is not merely financial. As legal scholars, jurists and experienced attorneys have attested for decades, many law students can, with the appropriate course work, learn in the first two years of law school what they need to get started in their legal careers.

In the 1970s, when similar proposals were discussed, two distinguished panels of experts — one led by Paul D. Carrington, then a University of Michigan law professor, and the other, the Carnegie Commission on Higher Education, overseen by a Stanford law professor and a dean — issued reports supporting a two-year curriculum, as long as certain essential courses were included.

What, then, of the third year, those famous semesters in which, as the saying goes, law schools “bore you to death” and student attendance drops like a stone? With this reform, law schools would have an obvious financial incentive to design creative curriculums that law students would want to pursue — a third-year program of advanced training that would allow those who wished it to become more effective litigators, specialize or better prepare for the real-world legal challenges that lie ahead.

We are confident that many law schools will be able to meet that challenge.

In fact, that evolution is already going on, as many schools (including our own) reimagine their third-year curriculums through externships, public service programs and courses that offer in-depth practical training.

If this trend continues — and the two-year option would only encourage it — those who graduate from rigorous three-year programs will not only emerge with sharper legal skills, but also be more essential to employers, raising the rate of job placement out of law school.

But legal education is not, nor ever truly has been, a “one size fits all” system. We have long had varied routes to the profession. Northwestern, for example, offers an accelerated program that lets students pursue a three-year course of study in two years, allowing them to take the bar and enter the job market a year earlier. And a handful of states, including New York, allow individuals to take the bar after working for a law office for a number of years, in lieu of going to law school, though this approach is seldom used.

Some will argue that the two-year option would only create unequal classes of lawyers and glut the marketplace with attorneys who don’t have the skills and training that generations of law school graduates before them have had.

We doubt this will occur. And in any case, the risk ought to be balanced with the varied needs of the American people for legal services. A two-year option, in our view, would provide young lawyers with the training they need to get started, lift a heavy financial burden off the backs of many — and vastly improve third-year curriculums in the process. That would be a big step in the right direction.

- Daniel B. Rodriguez is the dean at Northwestern University School of Law. Samuel Estreicher is a professor at New York University Law School and a director of its Opperman Institute of Judicial Administration.