Legal Education: Are Two Years Enough?

Richard Epstein
 
Right now there is major discontent with the structure of legal education, much of which is directed to questioning the wisdom of requiring three years of law school. Times are tough for lawyers.  he evidence on legal debt upon graduation is very high indeed. The new drumbeat, much of which has been orchestrated by Paul Carrington of Duke and my NYU colleague Sam Estreicher, pushes hard for a two-year minimum before a student can take the bar. Let the law schools earn their third year of education, and do not leave that decision in the tender mercies of the state.

I think that the proposition proves both too much and too little at the same time.

The first objection is that this program does not go far enough. There is no reason why students need to go to law school at all in order to take the bar examination. As both men have stated, many of the most eminent figures of the bar have never gone to law school at all.  They apprenticed some, studied on their own, hooked up with a mentor, and then became world class legal scholars. But if their success is a reason to go down to two years, it is a reason to get rid of the examination altogether. The ABA on this, as other things, is a protectionist lobby undeserving of respect, and in no way should its accreditation activities restrict how law schools act. Indeed, if you removed the ABA standards on everything from books in the library to faculty status, the cost of legal education would go down in ways that would alleviate the debt problems of students. It would also allow law schools to gain more efficient internal modes of operation free from meddlesome and uninformed oversight.

The removal of the bar will help consumers perhaps more than some lawyers, because it is quite clear that the professional model of legal advice is unaffordable at the bottom end of the socioeconomic spectrum. The need here is for the corporate practice of law, which, like the corporate practice of medicine, could break the logjam by allowing the correct mix of technology and people of all ranks and types to supply services at a price that the low income segments of the market can afford. The question here is not how the ABA rules can help access at the bottom of the market. Rather the correct question is how a varied class of private businesses can solve that problem, which they can only do if we modify all the rules that relate to the unauthorized practice of law.

The second objection is that the proposal goes too far. There is more law today than at anytime in our history. There is a greater need for lawyers today (at the top end of the market, certainly) to develop an extensive set of collateral skills that range from statistics to economics to science in order to work in their chosen subject matter area. At the same time, there are an enormous number of detailed regulatory statutes that now control such areas as labor, securities, environmental law, complex litigation, persons, telecommunications, patents and international trade. These are not subjects that can be picked up in an hour or a week. Many lawyers go back to school to learn up on these fields wholly apart from the continuing legal education requirements that are yet another form of protectionist overload.

So how is it that there is not enough material of a traditional legal nature to fill a three-year course? That question might have been asked in 1930, when property was not a course, but included separate courses in estates, future interests, leases, mortgages, chattels, animals, and conveyancing, all of which have largely disappeared as separate courses.

So why then the breakdown? Here is one explanation. Most lawyers today are, at heart, descendants of legal realism. They do not think of law as a collection of rules and principles that can be learned and mastered. They think of it as a subject in which every rule-like proposition breaks down into some intuitive judgment about reasonableness, which is then answered in the same way across the spectrum.  I believe that this attitude has a corrosive effect on legal doctrine, and also on legal education. The argument here is not that the law is weirdly autonomous. It is that the combination of doctrinal and analytical skills needed to learn the subject is greater now than ever before.

When I talk with strong practicing lawyers, they do not want law schools to go overboard on clinics and work study experiences. They want them to be more sophisticated at the kinds of analytical issues that they face all the time in drafting agreements and engaging in litigation. Law schools have to heal themselves. If they do, the three years will be a down payment on a lifetime education, not a bit of useless padding that can be dispensed with as some unnecessary expense.