Moving Part of Legal Education to the Undergraduate Level - Advanced Placement for Law Schools

Legal education, and higher education more generally, is facing a cost crisis.  As I will explain in subsequent posts, I’m not sure that the legal industry is facing a long-term shift in employment patterns.  Regardless of patterns in employment outcomes, however, law schools (and other higher education programs) cannot continue to increase real tuition costs at above the rate of inflation.  More broadly, we need to take a hard look at how we can reduce the costs of legal education.

One way of reducing costs would be to move part of legal education to the undergraduate level.  In our current system, students have to pay in full for both their undergraduate and law degrees.  If we could move some of legal to the undergraduate level, we could make graduate legal education less expensive.

In this post, I want to propose a mechanism for moving part of legal education to the undergraduate level.  The heart of the proposal is a set of competency exams that students could take before going to law school.  If a student received a sufficiently high score, the student would get law school credit and would place out of a required law school class.  Think Advanced Placement for law schools.  

The rest of this post is a slightly modified version of a post that I made in 2009 at the PropertyProf blog.  That post had a fairly extensive comment thread that might be of interest to readers of this one.  The ABA appears to be have some interest in considering radical ideas, so it seems like it may be a good time to revisit this issue.

Legal education faces a quandary.  On the one hand, law school costs a lot of money and takes a lot of time.  The tuition that can easily leave students with over $100,000 in debt is the most obvious cost of law school, but the opportunity costs of lost income over three years are also substantial.  On the other hand, a reasonable case can be made that three years is not enough to provide students with a full legal education.  Surprising as this may sound to students grousing about the purported uselessness of the third year of law school, the ABA Out of the Box Committee recently [in 2009] suggested that law school should be four years for regular division students.  As its name suggests, the Out of the Box Committee is designed to make provocative suggestions.  The Committee was cognizant of the problem of cost, but argued that three years is not sufficient time to fully prepare law students for the practice of law.  What you think of the idea probably turns on what you think the purpose of law school should be.  To be clear, an additional year of law school does not necessarily mean another year of doctrinal coursework.  It could be argued that four years are needed to provide law students with both the doctrinal knowledge and the skills training necessary to thrive as a practicing lawyer.  Think medical school, and you get the basic idea.

Even if you buy the Out of the Box Committee’s basic premise, concerns about cost make an additional year of graduate-level law school untenable.  If some component of legal education could be pushed to the undergraduate level, though, we might be able to have the best of both worlds.  Students already have to pay for undergraduate tuition, and if they came to graduate-level law school with some specified quantity of legal knowledge, then graduate-level law school could be devoted to more advanced topics.  If a sufficient amount of legal education was achieved at the undergraduate stage, then graduate-level law school might be shortened to two years while the overall amount of legal education received by students might actually increase.

What we teach in law school can be roughly divided into two components:  stuff and skills.  In its current incarnation, legal education is largely focused on teaching stuff – the basic doctrinal rules, and related policy issues, of various areas of law.  There is a reasonable amount of legal analytic skill that is taught in your typical casebook course, especially in the first year.  But most of what we teach is stuff – basic knowledge of one sort or another.  Some types of stuff are more complex than others, but most of the basics really aren’t that hard.  I’m pretty confident that undergraduates would be able to handle most of the basics of property law, and of any other legal area.

If students came into graduate-level law school with a decent introduction to the law of property, then we could do so much more with them.  What this more might be might vary – it could be more practice oriented, more theory oriented, or remain doctrinal, but on a deeper level.  Students wouldn’t need to enter with the same knowledge base that we expect them to have at the end of the first-year course.  Just a basic understanding of the fundamental areas of property law would suffice.

Presuming that it is desirable to shift some legal education to the undergraduate level, how do we get there?  My proposal is to create an advanced placement system for law school.  High school students can take advanced placement tests in a wide range of subject areas.  If they score well enough, they are given college credit and can place out of some introductory college courses.  The same thing could be done with legal education.  Exams could be offered in a number of doctrinal areas.  If students score well enough, they would be given law school credit and could place out of the introductory course in that subject (or could take an abbreviated version of that course).

One advantage of using placement exams as a vehicle is that it would let the market decide how best to promote undergraduate legal education.  If the ABA approves the tests, and allows accredited law schools to give placement credit for them, then it wouldn’t matter how students are prepared for the tests.  All that will matter is student performance.  Most of the basics of legal subjects could be taught well on-line, or through distance learning.  Kaplan, the Princeton Review, etc. might offer prep tests.  So long as students display a basic level of competency, it shouldn’t matter how that competency is achieved.  I would imagine (and hope) that undergraduate institutions would start to offer law majors, but students could prepare for the tests any way they like.  Initially, the tests would allow some students to gain some law school credit before starting law school, making it easier for them to get a J.D. in two years.  Over time, the tests might morph into law boards that all students are expected to take before admission to graduate-level law school. 

Moving to this system would have advantages for everyone involved.  For students, it would allow them to get the J.D. in two years.  If enough material was moved to the undergraduate level, then students might end up with the equivalent of four years of graduate legal education for less money and overall time.  If a lot of the basics were moved to the undergraduate level, graduate-level law school could focus on more complex and creative course offerings, better preparing students for practice.  Having a part of legal education done at the undergraduate level would also lead to more people getting some legal education.  Not everyone who studied law at the undergraduate level would go on to graduate law school to become a practicing lawyer.  Students with some undergraduate legal education would hopefully be able to make better-informed decisions about whether to get a graduate education in law or to pursue another career.  Students who decide that they want to go school late could take intensive programs like those designed for people who want to go to medical school but who have not completed the prerequisites.  Or, law schools could continue to offer full programs for those students who don't have an undergraduate legal education.

An objection, which is sometimes raised about European systems that have an undergraduate component to legal education, is that students end up knowing law but nothing else.  This could be called the liberal arts objection.  I'm a huge fan of liberal arts education, so this objection has a lot of resonance with me.  My initial response to it has a few parts.  First, an undergraduate legal education doesn't have to be as doctrine-focused as current law school programs.  If I was designing an undergraduate law program, I would require basic courses in logic and economics, and would highly recommend other courses in history, philosophy, and political science.  Second, students can and should take courses as undergraduates outside of their major.  Third, if someone was to object that it is a problem for lawyers to only know law, a logical response would be to ask what, exactly, lawyers should know in addition to law.  Students come to law school with such a wide range of undergraduate (and graduate) backgrounds that most have little exposure to any given subject area.

Shifting some legal education to the undergraduate level would change existing law schools, but would not hurt them.  So long as the graduate law degree – the J.D. – is the one required for practice, law schools are secure.  The placement exams would give graduate law schools a much-improved data set to use for admissions decisions – performance on actual law-related standardized exams would seem to me to be the best possible predictor of law school success.  (The LSAC folks shouldn’t be threatened – they’d be good candidates to administer the exams, and the LSAT wouldn't go away in any event.  US News would have a new data point for rankings, and this one (unlike many of their current ones) would actually be relevant and hard to game.).  Law schools might expand, becoming legal education centers providing both graduate and undergraduate offerings (alone or in joint ventures with undergraduate institutions) in law.  If the J.D. program was only two years, it might become common for students to do a specialized LL.M.  Law schools could compete in LL.M. specialization.  If you’re thinking about going to graduate school in philosophy, you would pick Pitt over NYU if you were interested in philosophy of science, but would pick NYU over Pitt if you wanted to study moral philosophy.  So, too, you might pick NYU over George Washington for an LL.M. in tax, but George Washington over NYU for an LL.M. in intellectual property.

The shift would also be good for law professors.  To begin with, there would be a lot more of them if undergraduate institutions started offering programs in law.  Those teaching at graduate law schools would have more freedom to be creative with their courses, and would be able to spend more time on complex issues rather than the basics.  I personally would love to try teaching Property to undergraduates.  I would also love the opportunity to teach more advanced Property issues to my law school students.  Even with six credits to teach Property, I can only scratch the surface of most issues.  If students had a basic background in, say, the law of servitudes, then I could spend more time on some important issues that I currently don't have time to cover.

It seems to me that moving to an advanced placement system for law school would be a win for everyone.  It would, however, involve change.  Academics and the regulators of legal education are typically adverse to change.  I am interested to see whether in the current environment people are willing to move outside of their comfort level.

Comments

[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.