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April 28, 2014

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Charles Paul Hoffman

As I've said before, I've long thought an ideal solution to our current woes (both law student debt and the faculty-side pressures caused by falling enrollment) is eliminating the undergraduate study requirement entirely and allow universities to issues Bachelors of Law (LLB) degrees as first degrees, as is done in most of the rest of the world (the only exceptions of which I am aware are Canada outside of Quebec and, to a more limited degree, Australia, which is in transition). I suspect that at most institutions the LLB would take either 4 1/2 or 5 years after gen ed requirements are figured into the mix, but that's still much better than 7 years from the perspective of most graduates. Of course, there would be a panoply of requisite changes at the institutional level to deal with new questions, such as how to admit students to the program, but nothing insurmountable.

All that said, I still doubt it will happen for path dependency reasons, especially the current rankings/prestige systems, which would likely punish any school looking to innovate in this area. But, were we to build a system from scratch, the requirement for a prior BA makes no sense for 98% of students.

Ralph Clifford

As I understand the landscape out there, many schools have already established 3+3 programs, my school included. This allows gifted students to start law school after their junior year. The first year of law school also counts as the last year of their undergraduate education.

Students who take the Cooley option should check the admission requirements for their future jurisdiction. I haven't reviewed the admissions requirements recently, but as of about 10 years ago, many states required an undergraduate degree for admission.

twbb

"These grads will, in turn, be better positioned to charge clients middle-class friendly hourly rates"

The total cost of attendance for both 2 years of college and 3 years of law school will still be significantly larger than 4 years of college and 3 years of law school cost through the 1980's, and that cost structure certainly did not create middle-class friendly hourly rates. In any event, the members of the middle class really don't want to pay hourly rates at anything close to what would be necessary for the lawyer themselves to maintain an hourly rate that would keep THEM in the middle class. The simple fact is that while many members of the middle class would be advantaged by hiring a lawyer for certain situations, they typically won't and yet still get along fine. For example, when you're a buying a house a competent real estate attorney could be very helpful, yet most people I believe don't hire one. And the end result is, well...nothing bad happens. The deal goes through, they get their new house, and move on.

Ellen

twbb: In states like NY, an attorney for a real estate closing is essential. However, the attorneys -- at least outside Manhattan in the NYC area and suburbs -- charge about $1500 per closing, so you have to do a lot of them to earn a decent living. Keep in mind R.E. brokers get 4-6% of the purchase price for selling the same property.

Where most middle class people by-pass attorneys is for Wills, Powers of Attorney, etc. == things many know they should have but go without or do them on Legal Zoom.

Cooley is truly a disgrace, but the ABA seems to be fine with them.

Steven Freedman (KU Law)

I doubt an AA/JD path is the way to go, but I do question why we don't allow the market a much greater say in how best to train students to become attorneys? Is the ABA so certain that the seven year Bachelor/JD path is the only effective way to train someone to be an attorney? What's their evidence?

As Charles notes, the vast majority of the world qualifies their students for practice after five years. Which means that Skadden/Jones Day/etc.'s European offices hire graduates with only five years of higher education. If five years is good enough for Dieter to be hired by Skadden in Munich, why isn't it good enough for Mary to be hired by DeFur Voran in Muncie?

Former Editor

Prof. Freedman: While I agree with you that the ABA should give serious reconsideration to its position regarding the BA/JD track, I can't agree with the notion that "the market" should have much more say than it already does in the form of overall market pressure on the profession. The practice of law in the United States is a self-regulating ethical profession. We have a group obligation, at both the law school level and at the state bar level, to ensure only those that can competently and ethically meet our professional obligations join our ranks. That obligation is separate from whatever level of ethics and competence "the market", which is composed of both attorneys and non-lawyers (who may have lesser standards for competence and ethics), might be willing to minimally accept.

Steven Freedman (KU Law)

@ FE. I'm not suggesting the ABA/state boards/etc. leave it up entirely to the market. Of course there should be licensing standards that include competency and ethics. What I am questioning is the unquestioning acceptance of the three year JD model for legal education and licensure.

Charles Hoffman notes the prevalence of LLB programs in the world. Assuming American employers were willing to hire LLB's, I think most potential students would prefer a five year LLB vs. a seven year JD. Would employers be willing to do so? As I mentioned, many of the world's top law firms hire LLB's, why should the U.S. be any different?

Not that we should be particularly wedded to the LLB. Two year JD's, legal practitioner programs (like physician assistants), and other innovations could serve the goals of reducing the cost of legal education and making legal services more accessible. We could also consider eliminating the bar exam, as Wisconsin has already done for graduates of its law schools.

Maybe the three year JD is the best model, maybe it isn't. Why not allow law schools to offer reasonable alternatives such as the ones I just listed and see how the market of prospective law students and legal employers respond to it?

Ellen


Given the boom in LLM programs at law schools across the rankings spectrum, it seems that many lawyers have concluded that seven years' education is not enough -- they need more education to land a meaningful, well paying job!

A two-year JD would probably not result in greater pay or responsibility than that given to current paralegals.

Given the ABA's refusal to address the current state of legal education and practice in any significant way, the last thing that should happen is the elimination of bar exams. The bar exam is the only remaining barrier to entry into the profession by people who should truly not be practicing law. That suggestion is a terrible idea.

Former Editor

@ Prof. Freedman: I don't think that using the standards for attorneys operating in different legal systems is an appropriate guide for the training required for attorneys in the U.S. That top world wide firms hire LLB's to work in foreign jurisdictions doesn't strike me as persuasive, or even probative, on that point. To the extent that you are arguing that these firms hire LLBs to practice law in the United States, those LLB holders still need to be admitted to practice law here. In some states, I'm thinking of NY in particular but I have no doubt that there are others, a foreign degree is not considered enough to permit a foreign lawyer to even take the bar exam, let alone be admitted to practice. An additional U.S. degree (usually an LLM) is needed.

As I said, I'm in favor of rethinking the law school curriculum in general (although very much not in favor the "legal practitioner programs" you mention for reasons I won't get into here), but I don't think the "market" reactions to changes bear on those question much. In particular, the market of prospective legal employers should matter only insofar as those potential employers are also attorneys and understand the demands of the profession. Those folks already have a voice through the ABA, other professional associations, and the like.

As to how the market of "prospective students" would react, the suggestion is more than a little bit strange. How would determining competency and ethical requirements for the practice of law based on what prospective law students want be markedly different than writing a final exam based on what the class would like to be tested on?

Steven Freedman (KU Law)

Foreign legal systems don't need to be a "guide" for the U.S. legal system, but surely their experiences in training talented attorneys in five years should say something to us about how many years are required to adequately prepare someone for the practice of law.

I don't understand what is so special about the U.S. legal system that it requires two more years to prepare for it than in almost every other country. Surely the French legal system is extremely complex with complicated legal principles and practices governing its administration. Yet, by all indications France, which only requires five years, has a stable society with a strong adherence to the rule of law. Must be the snails.

I just don't see why students shouldn't be offered more choices. Unless supporters of the status quo can present evidence that three is the magic number for the number of years it takes to train someone to be an attorney, then why not explore allowing law schools to offer a two year/60 credit JD. If there is in fact significant value in that third year, then employers will demand it and students will seek it out. If there isn't, then we'll have saved tens of thousands of law students one third the cost of attendance.

As for the bar exam, what's going on in Wisconsin? Since the vast majority of the Wisconsin bar never passed a bar exam, I suppose Wisconsin must be on the verge of anarchy? Could someone look that up?

p.s. I'd like to emphasize at this point that I am speaking for myself, and not on behalf of the State of Kansas. Also, I should clarify that I am an administrative dean, not a professor. You can call me Steve.

Bathsheba Boldwood

"I'm not yet prepared to say that a JC to JD pipeline is a good idea. But if we believe that a big hunk of America needs, but fails to receive, legal services, this is at least one way to imagine solving the problem."

This idea that, if only there were lots of newly-qualified lawyers out there with little or no debt, legal services for poor and middle-class Americans would become available at cheaper rates than currently prevail, is a recurring canard.

There are already lots of experienced lawyers out there with little or no debt. They're already competing with each other, and charging as little as it is possible to charge and still survive. The notion that by adding still more lawyers you'll "solve the problem" by driving down the cost of preparing a will or defending a DUI even further is lunacy.

twbb

@Ellen:

I think many lawyers are just desperate enough that they convince themselves an LLM will make them stand out when honestly it is probably one of the least useful graduate degrees around. I totally agree about the bar exam, and as the applicant pool and the resulting law school student body gets less and less accomplished I think we're going to see a massive lobbying effort on the part of law schools to get the bar exam eliminated or the passing threshold lowered.

anon

Twbb

"As the applicant pool and the resulting law school student body gets less and less accomplished I think we're going to see a massive lobbying effort on the part of law schools to get the bar exam eliminated or the passing threshold lowered."

Bingo.

And, don't expect any reductions in law faculty sizes if the JD program moves to two years. Expect instead tuition hikes (though less steep than of late) and more interest in hiring faculty that know little or nothing about the practice of law, especially because such knowledge will become increasingly irrelevant to law students facing job prospects that are increasingly unrelated to becoming attorneys.

BB, I don't think we can all agree that legal services for the elites are important and necessary (not sure you believe this), but that the only legal services the other 99% need are "preparing a will or defending a DUI." That sounds a bit like something a modern day Geoffrey Barratheon might say!

Bathsheba Boldwood

If I knew who Geoffrey Barratheon was I might be worried!

Ellen

twbb: I was joking, of course, about LLMs. Agree they are mostly useless and getting one is probably an act of desperation for many.

Iowa law schools have floated the idea of eliminating its bar for Iowa law school grads. I hope that this idea is a non-starter in most states since it is an obvious attempt by law schools to eliminate the last remaining barrier standing in their way to open admissions.

I also agree that the notion we need more lawyers to service the unrepresented in nonsense. Look at South Dakota -- only about 2000 lawyers in the entire state, some counties have no lawyers -- they started an incentive-based program to attract out of state attorneys and it has not done much good. Why wouldn't unemployed or underemployed JDs who truly want to practice law and help people be flocking there?? The fact is, most lawyers do not want to do the kind of work the poor and under represented need or go where they are to serve them.

Former Editor

@ Steve

I'm not saying that we necessarily do need a 7 year pathway to becoming an attorney. As others have noted, 3+3 programs are becoming increasingly common and there are other programs that have been proposed (e.g., NY C.J. Lippman's 2+1/2 proposal). I'm all for exploring alternative pathways, I just don't think saying "other countries don't need as much time" is probative either way on the amount of training an attorney practicing in the U.S. needs. It's an apples to oranges comparison. That both are pieces of fruit doesn't tell us that much.

As for the bar exam, I think that you may have a view that's colored by the school you work at. KU is a relatively selective school where 90% of the students pass your state's bar exam. It might be easy to think, with your crop of students, that anyone who can get admitted to a law school should be able to pass the bar and is capable of competently practicing law. From there, it's a short jump to thinking that the exam is superfluous. However, that's simply not the case at many lower ranked schools where students are sometimes admitted that really aren't capable of practicing competently. Read some of the final exams from the bottom quarter of the class at an unranked school and you will see what I'm talking about.

Re: Wisconsin, it's tough to make state to state comparisons on this issue as well. Wisconsin has a relatively healthy lawyer:population ratio and a small number of law schools (2 says Wikipedia), so the unqualified law grad problem is probably not as much an issue there as in it is the Northeast or California where the ratios are markedly worse and there are many more law schools. For example, Mass has 9 schools but only a 20% larger population than Wisconsin.

@ Ellen

I'm surprised to hear that the SD program doesn't have a sufficient response rate. The program only had less than twenty openings, after all. Are you saying that they don't even have enough qualified applicants to fill those spots? That would be very disappointing.

Barry

Dan: "I'm not yet prepared to say that a JC to JD pipeline is a good idea. But if we believe that a big hunk of America needs, but fails to receive, legal services, this is at least one way to imagine solving the problem."

Jesus fucking H. Christ, you guys never fucking give up! The market is already glutted; the reason that legal services are out of the reach of so many people is that they don't have money.

Barry

Ellen: "I also agree that the notion we need more lawyers to service the unrepresented in nonsense. Look at South Dakota -- only about 2000 lawyers in the entire state, some counties have no lawyers -- they started an incentive-based program to attract out of state attorneys and it has not done much good. Why wouldn't unemployed or underemployed JDs who truly want to practice law and help people be flocking there?? The fact is, most lawyers do not want to do the kind of work the poor and under represented need or go where they are to serve them."

The population of South Dakota is 833K; that's 416 people per lawyer. The population of NY State is 19.57 million. There are 76,000 members of the NY State Bar association; that's 247 people per lawyer. And NY State pulls in vast amounts of national and international business.

The reason that South Dakota has so few lawyers is that there are very few people. Stop looking at maps, and gawking at square mileage.

The reason that some counties in South Dakota have no lawyers is that there is no business.

anon

Barry:

Did you mean:

"The population of South Dakota is 833K; that's 416 people per lawyer. The population of NY State is 19.57 million. There are 76,000 members of the NY State Bar association; that's 247 people per lawyer [BECAUSE] NY State pulls in vast amounts of national and international business."

?

Ronald Johns

2+3 programs? Could see it with some of the lower ranked schools, where they take their own students from undergrad to law school. That way that university keeps their own law school afloat. Also if a student would only be there 4 years for undergrad, by doing this program the university gets another year of law school.

Even could foresee a 2 years undergrad, 3 years law school, 1 year MBA, so in 6 years then 3 degrees are earned, saving the student 3 years of tuition.

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