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February 27, 2013

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James Grimmelmann

In other words, law schools would replace the LSAT with the bar exam.

Scott Pryor

A concept worth pursuing. I've previously posted at my blog about my experience teaching in an Indian National Law University. NLU's offer a five-year joint degree program with an LL.B. and another major from a limited number of options. Surely a six-year B.A./J.D. should work.

BoredJD

How would hiring work under your plan? Institutional employers like the required traditional first-year curriculum because it allows them to easily rank students at each school using the same metric. They may favor schools that keep the traditional model which allows them to evaluate candidates on a defined set of first-year grades and then a summer program.

I don't think law schools should confine curricular change to the demands of legal employers- especially certain kinds of legal employers that generally hire only from elite schools. But practically it's a big impediment to reform since law schools tend to track what the elite schools do.

Ben Barros

James - the tests would be more limited in scope and subject matter. And I don't think that the LSAT would go away. But it is fair to look at it as supplementing the LSAT with a baby bar.

Scott - thanks - I'll check that out.

Bored JD - interesting question. You are correct that it would undercut the summer associate model. Employers could shift to a first year summer program, but as you suggest, they wouldn't have first-year grades to go on. The lack of information might lead them to place even more emphasis on pedigree than they already do, which would be perverse. Maybe the summer associate programs would go away, and firms would hire for after graduation. At least when I was a summer associate, the expectation was 100% offers, and the program was more of a recruiting tool than a part of the selection process. I realize that these expectations may have changed in the last couple of years.

higher ed staff

Although this is a great trial balloon, I wonder about the harm it might cause to the first year experience. Although there's a lot of debate about the utility of a third year of doctrinal classes, I think almost everyone agrees the first year does a fantastic job of training students to "think like a lawyer".

Take property for example. A standardized property test would likely amount to a memorization test for black letter law. But I don't think property law is a first year class because students have a need to learn black letter property law. The purpose for teaching property law is to teach students the complex interplay of common law and statutory law, how black letter law becomes black letter law, how jurisdictions differ in applying legal concepts, etc. Added to this is the benefits to issue spotting exams which require students to think creatively when analyzing facts in a legal problem. Under your system, the danger is students could test out of property by memorizing black letter law and likely circling bubbles on a multiple choice exam. That does not seem like a good idea.

Could you make a good standardized property law test for undergrads? Based on the MBE, I wouldn't think so.

Why not just take the easiest route by reducing law school to a two year program?

Tribe Fan

Why not simply eliminate the requirement for a bachelor's degree and allow students to enter law school after their sophomore year of college? The junior and senior years of the BA or BS or BFA degree that is now required does not add value for many students who attend law school. I was a biology major, earned a BS degree, and was focused on science courses such as Anatomy and Physiology and Biochemistry that later proved unimportant in law school or practice. Partners of mine at a BigLaw firm included students who earned Bachelors in performance arts, such as music or theater, and there are numerous other majors that have little to do with law. Unlike medical schools, which have legitimate requirements for undergraduate courses, law schools don't appear to need to examine the courses you take in college.

In my approach, we keep the law school at 3 years, but shave 2 years of education off the total. Given the sunk costs that universities have in law school buildings and tenured law faculty, and the availability of junior transfers from two-year junior colleges or from overseas, it would seem easier to sell to the institutions that need to accept the change.

Ben Barros

Higher ed: A couple of thoughts. First, I actually disagree on the purpose of first-year property. The main purpose of first year property is to introduce students to the basics of property law. To the extent that "thinking like a lawyer" is part of the first year experience, it could be taught in a wide variety of contexts. This may be a good topic for another post, but the whole "thinking like a lawyer" thing often strikes me as an excuse to avoid teaching necessary content in first-year courses. E.g., "oh, I don't need to teach students about mortgages in first-year property - I'm teaching them to think like a lawyer by covering other stuff." Second, I agree that the MBE stinks on Property, but I do think you could make a better standardized test to measure achievement in Property. Third, re: making law school two years - I just don't think that is enough time to get students to even a basic level of competency. It might work if law school was followed by some sort of formal apprenticeship program. There are two complaints about law schools that are in tension with each other. The first is that law school is too long and too expensive. The second is that law schools are not preparing lawyers for practice. I understand that these complaints can be reconciled - make law school two years, and focus more on relevant stuff. But being a lawyer is complicated, and I'm really hesitant to endorse reducing the total amount of education for law students.

Tribe Fan: Interesting thought. My big worry would be having students get to the professional part of legal education (what would remain at the graduate level under my plan) at too young an age. Maybe that worry is misplaced in some contexts. Many schools (including my own) have 3-3 programs, where students go to law school after three years of undergrad study. These 3-3 programs are typically tied to particular undergraduate-law school combinations, and my impression is that they aren't that popular. Your proposal isn't that much of a change from the 3-3 system.

Thomas NZ

If this was facebook, I would "like" the post.

Law is an undergrad degree in many countries, and it makes a lot of sense to teach some of the basics at college, which then feeds into more advanced study at the law school level, over only two years.

I would ignore employer requirements - ultimately, employers are sensible enough to work around whatever is on offer. Obviously X who went to Harvard and did a 3 year JD may want another Harvard JD (who ideally went to the same high school), but look at it the other way - students who finish a year earlier can in theory be paid less.

It seems evident from so many posts (and probably other materials), that students have seriously diminishing returns - in an educationalsense - from four years of college and three years of law school. Real curriculum reform involves looking at the whole structure like this, not tinkering with semester two of the first year.

James Grimmelmann

Ben and higher ed, I disagree with you both about the purpose of Property.

Ben, there is no reason most lawyers should know most of the substance of what is covered in Property. For lawyers who work in real estate, the course is highly useful. For everyone else -- the vast majority -- the extensive coverage of real property is valuable only in the interstices. It's tested on the MBE, but really, it shouldn't be.

higher ed, the generic jurisprudential topics you list are, likewise, not all that helpful. The "complex interplay between statutory law and common law" is so abstract I'm not sure what it entails, or why this is vital knowledge, or why Property is especially good at teaching it. And this is my fourth time teaching the course.

Property is worth teaching because it is one of the three conceptual pillars of American private law, along with contract and tort. It features perhaps twenty to thirty significant concepts that students need to understand on a deep and intuitive level, whatever specialty of law practice they go into: chains of title, rights in rem, possession, priority in time, actual and constructive notice, warranties of title, accountings, equitable division, successors in interest, and so on. If one practices real estate, family law, wills and trusts, commercial law, corporate law, or tax law, the connections are obvious, but these concepts also undergird any other area of practice that deals with private rights and responsibilities. The purpose of making Property a first-year course is to give students facility with these concepts while also helping them practice the reading, analytical, and argumentative skills that the entire first-year curriculum is supposed to build (at least in theory). That could be done in three credits, and I'm coming to believe it should be.

higher ed staff

Ben - I agree that two years of law school doesn't prepare students for practice, but it can be argued that that's true of any amount of law school. The classroom component is essential and the first two years are effective at providing students a knowledge base, some tools and even a taste of legal practice through clinical programs. But I think the learning curve is so steep for practice that nothing other than actual practice can adequately prepare someone for it.

Like most things in life (neurosurgery, writing a phd, sex), learning by doing is much more effective than classroom learning. Even clinical programs are limited by the number of hours students participate in them. In my book,twenty hours of practice per week in a clinic is only one third as effective as sixty hours per week in a law office. So best to save law students a year of tuition and lost wages and send them out there to learn.

higher ed staff

Ben - that's not to say that your idea isn't a good one. It is definitely an option worth exploring. I just think lopping off the third year might be a more direct and effective way to help reduce the cost of law school.

Ben Barros

James, I think we disagree, but I'm not sure exactly how much we disagree. You identify a number of core topics that we need to teach in Property. I agree, though I think we also need to teach core doctrine as well. Everyone should know what a mortgage is, in part because most people will enter into many mortgage transactions during their lives. And I don't think three credits is enough.

Higher Ed, thanks. I'm still uncomfortable with two years, but I agree with you on the learning curve. It will be steep in any circumstance. The question is how far up we need to get people before they graduate.

anonymous

Higher Ed: "I think almost everyone agrees the first year does a fantastic job of training students to "think like a lawyer"."

Uhhhh.....are you joking? Nowhere near "almost everyone" believes that; in the legal field, mainly law professors think that. Many practitioners (most?) don't think law professors themselves know how to think like lawyers. Coupled with a law school system that has not adapted a single major pedagogical advance made in the past 100 years, I think few people competent to judge the first year of law school would think it does a "fantastic job."

higher ed staff

@ anonymous. Ok, "almost everyone" and "fantastic" may have been a stretch, but I would bet good money that a large majority of law graduates would agree with the statement that the first year is good preparation for the intellectual aspects of law practice. I take the 100 years of its nearly unchanged existence as strong evidence for this consensus (cf, the forty year push for reform to the second and third years).

James Grimmelmann

Ben, the difference in our philosophies is the difference between "topics" and "concepts." Mortgages is a topic; a security interest is a concept. Mortgages are important, but I'd rather have students recognize that mortgages, tax liens, and Article 9 security interests are all examples of the same kind of thing, even if that means stinting on the details of real estate mortgages.

Ben Barros

James, you have captured our disagreement well. We agree on concepts, and the one you give as an example is a good one. I spend time on this concept in Property and Real Estate. We disagree on doctrine. I think doctrine is really important; you are more skeptical.

It was nice to hear you on NPR yesterday. You sounded very authoritative.

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