The Third Year, and Before

Is the third year of law school really such a waste of time?  Does it need to be reformed?

NYU Law is in the news today via this story in the New York Times, which describes NYU's plans to overhaul the third year of its JD curriculum.  Much of the emphasis, it appears, will be on study-abroad opportunities, concentrated work in specific subject matter, and externships in Washington DC (among other places, I assume).

At volokh.com, Kenneth Anderson has a long and thoughtful reflection on this, which winds up with a measured defense of law school's third year.  He points out in passing that NYU is among the fortunate few law schools that can afford to spend its time and its money focusing primarily on pedagogy - rather than on the changing demand for legal services and thus the changing demand for lawyers.

I confess that my first reaction to the news from NYU went more to that second point than to the first.  This is low-hanging fruit for NYU.  If a school can afford to create travel and externship and specialization opportunities for 3Ls who want them, then it can go right ahead.  Few faculty are likely to object, I suspect.  But not every law school should be or will be looking to emulate NYU; not only do many schools not have NYU's resources,, but many schools have more pressing concerns.  Law grads need full-time jobs in a shifting marketplace.  If the third year is a problem, it's a problem mostly in the cost-benefit sense.  Students are asked to incur a full year's worth of tuition and other expenses, and what do they get in return?  This is not a new issue; it simply has more urgency.  Study abroad opportunities are not high on the wish lists of students at many law schools.

Even from a pedagogical standpoint, and given that shifting marketplace, I wonder whether putting a school's pedagogical eggs in the third-year basket is the right strategy.  Stanford has made the same bet, I know; mysteriously (to me), and without a lot of evidence, Stanford declared that the first year works.  (But see the reference to "low-hanging fruit," above.)  The first year may work, though, because declaring that the first year is full of problems opens a can of worms that few faculties want to deal with.  First-year curricular reform is usually where provocative and innovative ideas go to die; few faculty are willing really to abandon the fiction that the foundation of lawyering is "thinking like a lawyer."  I've had some of that experience myself.  UC Irvine made some modest changes to the standard first-year curriculum, but the UC Irvine program is not path-breaking.  *Really* changing the law school program in anticipation of the legal profession's *really* looking and acting differently, whatever that might mean, is *really* hard.  To take just one example, law schools that are currently evaluating candidates for entry-level faculty positions are, on the whole, anticipating hiring new faculty to teach more or less "standard" law school courses, in the more or less "standard" law school curriculum.  Even faculty who are innovating in the classroom are often shoehorning new things into "standard" law school course packages.  I certainly am.  In terms of pedagogy, legal academia is still largely fighting the last war.

One of my third-year students asked me the other day why students (in her experience) spend two full weeks in the first year going through Pennoyer v. Neff.  I understand the history of that sort of thing, and when I taught Contracts I did a little of it myself.  How to take apart a case is a critical part of the lawyer's toolkit, and Pennoyer is neither better nor worse than many other cases if it's used to teach that skill.  Is it, however, where we should start a lawyer's education?  If law schools could build their programs from scratch, without the ABA-imposed condition that training must consist of three years' worth of material, what would and should they look like?

Comments

[Orin Kerr]

"One of my third-year students asked me the other day why students (in her experience) spend two full weeks in the first year going through Pennoyer v. Neff."

If I knew of a teacher who did that, I would have the same question.

[Craig M. Boise]

"If law schools could build their programs from scratch, without the ABA-imposed condition that training must consist of three years' worth of material, what would and should they look like?"

More law schools need to ask the hard questions like this, and, more importantly commit to finding answers. Very thoughtful post.

[Douglas Levene]

I've been teaching law for 2+ years now after many years of practice, and IMHO the traditional 1L program is the essence of law school. Where else do students learn how to induce legal principles and to test them against multiple slightly different fact patterns? Note that this skill is at least as useful for transactional lawyers as for litigators, and is one of the reasons that the American style of legal practice has become dominant in transnational practice. How else do students learn to make all the different kinds of arguments that lawyers can make in support of a position? Just lecturing on the law, even if you lecture on all those possible hypotheticals and possible arguments, is not an adequate alternative. As for the third year, I can see excellent reasons for making it optional.

[James Moliterno]

The changes at Washington & Lee go far beyond more clinics and externships. The full-time credit load of the third year is structured so that the student acts in the role of lawyer. Clinics and externships are a part of that. But their work is also done in elaborate simulation courses, many taught by leading practitioners. In these simulation courses, the student is placed in the role of a lawyer in a particular practice setting and is assigned to perform the core functions and work of such a lawyer. The courses range the spectrum from "The Lawyer for Failing Businesses" to "Poverty Law Litigation" to "Corporate Counsel" to "Family Law Practicum." Approximately thirty of these new courses are available to students. In addition, the curriculum includes two, two-week skills immersions, intense simulations meant to ground the students in the fundamentals of both litigation practice and transactional practice. Students litigate a simple case in the litigation immersion and they represent either buyer or seller of a medium-sized business in the transactional immersion. Finally, the students have a course on the culture, economic systems and current controversieis of the legal profession and they also have a service requirement.