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Debate Club
DEBATE CLUB 9/19/05

Abolish the Third Year of Law School?

Laura I. Appleman and Daniel Solove debate.

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In some countries, lawyers can practice after earning an undergraduate degree in legal studies. In the United States, would-be lawyers generally must go to college and spend three years in law school to earn their J.D.'s. Many lament the duration of the program, particularly the final year when, after two years of classes and internships, it feels to students like they're passing the time until graduation.

Some educators as well as students propose that the third year be reformed or abolished. Should law schools eliminate the third year?


Laura I. Appleman is Visiting Assistant Professor of Law at Hofstra University School of Law. Daniel Solove is Associate Professor of Law at the George Washington University School of Law.

Appleman: 9/19/05, 09:10 AM
I first wanted to thank Legal Affairs for hosting our conversation, and say how much I'm looking forward to debating with you this week, Dan!

Most American lawyers take for granted that law school is a three year, post-collegiate course. But do we really need that last year? Historically, even after American lawyers switched from the apprenticeship model to a more formalized system of legal training at the end of the 19th century, law school lasted, at most, between 18 months to two years. It took years for the three-year model to dominate legal pedagogy. So a three-year term of law school, following a four-year college degree, is a relatively new idea for American lawyers.

There are many ways to attack the law school teaching model. One of the most popular, however, is the idea of either eliminating or greatly reforming the third year of law school. As the old canard goes, "In the first year they scare you to death; in the second year they work you to death; and in the third year they bore you to death." So what about that third year of law school? Do we really need it? What purpose does it serve? Would lawyers—and the law in general—be better off with only a two year course, or some sort of practicum/internship requirement for the third year?

I can see why law schools would want to keep a three year term; on a purely financial basis, three years of tuition is better than two. And let's assume that law professors have an interest in having students for a longer period of time, for both teaching and mentoring purposes, both of which are better achieved in three years rather than two. Moreover, reducing law school to a two-year course would increase hiring pressures to an impossible degree for first-year students, with potentially negative effect on post-graduation employment. So as a professor just entering the academy, I certainly might vote to retain the current model.

When I look at the question from the student's point of view, however, I have some real issues with the standard three-year course of study. Is there any compelling reason why law students are better off with three years of required classes?

Are the opportunity costs lost by requiring a third year (in tuition, time, lost earnings) made up by the knowledge obtained? Does that third year really foster a greater understanding of the law? My sense is that we should really re-engineer the third year of law school, either not requiring a full third year or allowing students to replace it with a full year of internship/clerking combined with one mandatory class a semester.

What say you, Dan?

Solove: 9/19/05, 12:53 PM
A big thanks to Legal Affairs for hosting this conversation. Laura, you raise some interesting points. You're certainly correct that each year of law school places an immense financial burden on students, so the third year of law school should produce significant benefits to offset the costs. If it doesn't, then scrap it. But I believe that the third year is indeed worth it.

Condensing law school into two years will cut out much time for students to be exposed to different ways of understanding the law; to think about the law broadly and critically; and to explore different subject areas so that they can better figure out what kinds of jobs and areas of law they might want to pursue upon graduation.

In the first year, most schools have the students' entire schedules filled with required courses. At this time, students are overwhelmed. It takes a while before things start to make sense. The first year is thus an intense and all-consuming experience.

It is not until the second year where students can begin to choose electives and also participate in a variety of activities. Plus, there are clinics, which provide hands on experience, as well as a fascinating menu of courses to explore. I think that it is important for students to try out these opportunities—to take seminars, to try out interesting elective courses, to do activities and clinics.

Condensing this all into the second year would be immensely difficult. The second year of law school is already notorious for being crammed with so much that students are stretched thin. In the quip you quote, in the second year, they "work you to death." Beyond the activities, courses, and clinics, students must juggle interviewing for jobs as well as writing lengthy papers, which are required by most schools for graduation (a good requirement, in my view). Without the third year, all this would be condensed into the second year, which is already overstuffed. Students may never have the chance to experience a seminar, to take a clinical course, or to try out moot court. At many schools, even after the first year, there are several other required courses that students must take, leaving precious few slots for electives if students were to graduate after the second year.

Additionally, many students become teaching assistants to professors, helping the professors teach first year students. I was a teaching assistant when I was a third year in law school, and the experience was invaluable. I learned much more through the experience than I ever would have in a single class. Some students become research assistants to professors, and they learn valuable skills and gain a mentor.

Of course, there are some students who blow off the third year of law school. But it need not be that way. If you give people the opportunity to explore and try out things without forcing them to do so, many will take advantage of them but some won't. A streamlined system will discourage students from engaging in different law school activities if not make doing so nearly impossible. Moreover, the third year is one of the first times that students can catch their breath in their law school experience. It is a time where they can reflect more, where they can have the time to think about their careers and interests, where they can try out different things. It may not be ruthlessly efficient to have a third year, but sometimes, there are unquantifiable virtues in having time and freedom to explore.

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Appleman: 9/20/05, 09:01 AM
Dan, I wonder whether our own experiences as law students might make us over-value the usefulness of the third year. After all, we both entered the legal academy, so clearly there was something about law school that we both enjoyed. Although I agree that the third year can provide some valuable experiences for the motivated student, I am concerned that requiring the third year for *all* students may do them more of a disservice.

First, you point out that at most schools, the entire first-year curriculum, and often much of the second, is taken up by required courses, and to eliminate the third year would mean that all electives, research & teaching positions, & moot courts would have to be stuffed into a second year already filled with clinics, journals, research papers, and more. But this is true only if you assume that the current structure of legal education must continue unchanged. Is it really necessary to have an entire first year of required courses? After all, 20 years ago, most undergraduate curriculums were rigidly structured for the first two years. Now, in contrast, electives play a much larger role even in the first year of college (for humanities, at least).

So my reforming of law school teaching wouldn't just stop at potentially shortening, or changing, the third year; it would also include rethinking what the number of required courses would be, both first year and second year. I'm just not convinced that a full year of required courses is really necessary for law students, even first-years. Thus changing some of the current teaching model may ameliorate some of your "overstuffed" concerns.

Your larger point, though, seems to be that law students may truly need a final year in which to catch their breath, reflect a little, and explore different paths. And indeed, many would. But not all—and it is this segment of law students with which I'm most concerned. Although certainly it would be great if all third-year law students would use their last year so effectively, I suspect that many do not, and feel trapped in an educational system that forces them to essentially cool their heels for a year while paying vast amounts of money.

Is it worth it to require a full third year of classes so students can have some time to explore and reflect about the law? I'm just not convinced that we are using the first and second years of law school effectively, and perhaps that is why that third year is still there. I suspect that if law schools curriculums were seriously revamped, we wouldn't need the full third year quite as much.

Solove: 9/20/05, 12:51 PM
Laura, I certainly agree that the current law school educational experience can be much improved, but I disagree that a shorter program of study would be beneficial.

You agree with some of the benefits of the third year that I point out but argue that it is a disservice to require all students to go through the third year. It may seem paternalistic, but without such a requirement, most students would obviously choose to get through law school as quickly as possible. Why not, when it is costing a lot of money? I'm very sympathetic to the money issue, but I worry about law schools becoming mere lawyer factory assembly lines.

Some assume that the goal of a legal education should be to teach people practical skills so that when they leave law school, they can start practicing law like a pro. I don't agree. The goal of law school is to teach students how to think better and how to work with various legal arguments. It is to expose them to different ways of understanding the law and to think about the law broadly and critically.

Moreover, law school isn't just about what the students want. We are training people who will be in profound positions of power—future lawyers, judges, politicians, policymakers, and so on. It is important for all of society that these individuals be given a legal education that consists of more than just taking a few key classes and rushing off into the practice of law. Law school is, for many, one of the few times that they reflect more broadly on the law, on justice, on how the law ought to be, on what works and doesn't work well in the legal system. It is a chance to learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more. I believe that these things make students be better lawyers—wiser, more creative, more well-rounded. When we train lawyers, we're training people who will be shaping our society, and I think it is imperative that their legal education be a robust extension of a liberal arts education, not simply a trade school education. That's because I believe that law is more than a trade; it is more than simply representing clients; it is more than just another kind of business.

Sadly, the practice of law often doesn't reflect this vision. And the result is that many students are often miserable in their jobs at law firms. But the answer is not to let the problems of the world of legal practice dictate and shape the law school experience. Rather, it should be the other way around. Where law school needs to be improved is in better preparing students for finding ways to have more fulfilling careers in the law. And this depends upon exposing them to new areas of law, to new ideas, to new ways of thinking—even when they would rather hurry up and finish and begin making money.

This, of course, doesn't mean that I'm satisfied with the job we do educating our students. We don't spend enough time helping to guide students toward finding their real calling in life. So many just go into jobs that are unfulfilling and surveys of lawyers show a great dissatisfaction with their careers.

This isn't just a problem with the legal profession—it's also our problem as legal educators. We can and should do better. But it shouldn't involve scrapping all or part of the third year. I also disagree with your suggestion that the third year basically consist of externships. The mission of the third year should be to get students to explore new areas of law, new legal ideas, and perhaps most importantly, begin to chart their career path and vision. We believe that because a bunch of law firms pluck our students away, that we've done our job in getting them jobs. But we haven't helped them develop their vision of career and self.

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Appleman: 9/21/05, 09:06 AM
Dan, your response flags an ongoing debate within legal education: Is law a trade school, or a way of training future lawyers how to think, the last bastion of general liberal arts education? The divide on this issue is partly what causes many of the problems in law school pedagogy—there's no clear vision as to what, precisely, a law school should be.

The problem, as I see it, is that the current system of law school education attempts to do three things (at least) at the same time: (1) it tries to impart a kind of intellectual approach to the law, a way of thinking and writing, which the student will be able to take wherever she goes; (2) it tries to teach specific bodies of knowledge, such as Criminal Law, Tax, Evidence, etc.; and (3) it tries to place students in jobs after graduation. Although different schools focus on different aspects, all law schools try to achieve all three goals. Yet law school pedagogy is so vaguely defined that students can be left struggling.

I agree entirely that law schools often fail in helping students "chart their career path and vision." But I don't think this can be left until the third year, nor do I think that law schools need a full third year to achieve such a goal. Instead of essentially throwing first-years into an intense and often intimidating sea of required law courses, why not allow them at least a bit of choice in their first year courses? I realize there are some basics that must be taught in the first year, but I still think there's room for that all-important exploration of law and legal ideas before the third year.

Additionally, I do think we need to take the rising cost of law school very seriously, because it drastically affects what students can do post-law school. Let's just consider the incredible debt that the average law student racks up in three years. For most students, their loan debt forces them into law firm practice to pay down their debt, essentially curtailing their options once they leave law school. I think many students would rather have more choices out of law school than in it, and would be glad to trade some flexibility and reflection for the chance to go into public service or other alternate paths.

Moreover, if we stick with the current scheme, I fear that the number of lawyers working in the public sector will shrink, leaving our most vulnerable segments of society adrift. If one of the reasons we educate future lawyers is to provide guidance and assistance for those in need, we're doing a poor job of fulfilling that promise.

Finally, many full-time law students work up to 20 hours a week during law school, in part to cover those stratospheric tuition costs. Often this means that their experience in law school is substantially diminished; they are so stretched at the seams that the quality of their education is diluted. By reducing the length of law school (and thus tuition costs), and also reducing the amount of hours that students may work, their law school time would be enriched.

As such, I think the best way to structure law school would be a course that reduces the requirements in the first year (allowing more electives), that allows more intensive externships, and that lasts two or two and a half years, with the possibility of staying for an extra semester or two. That way, certain students could get the benefits of the additional year, while still allowing other students to graduate in a more compressed period of time. Perhaps those who stay on for the extended course could receive a slightly different degree, demarcating their more substantial course of study.

No one wants to see a lawyer factory system emerge, but we simply must recognize the pressures operating on students as the system currently operates.

Solove: 9/21/05, 01:03 PM
Laura, you definitely raise a strong point about the large debt students incur and the fact that many must go to firms to pay it off. I believe, however, that even without the debt, many students would still be going to firms. They often aren't given the help they need to develop an alternative career path, and law firms are the path of least resistance. I don't believe that chopping off a semester will suddenly enable scores of students to take public interest jobs. Public interest jobs are often very competitive; there aren't endless spots open in public interest organizations. If anything, there are too few positions available.

The problem is caused by larger structural problems—namely, that our society hasn't figured out a way to provide more resources to public interest organizations. There are countless bucks rolling in at the large firms, but little provided to public interest organizations that contribute so much to society. Why is this? How can this larger problem be addressed? These are the issues we should be thinking as legal educators; they are issues that we should be encouraging our students to think about. We often teach students about the need to think about social reform and encourage them to devise their own ideas about social reform. What we often fail to do is give them the necessary training and guidance to carry it out. Law schools should have more of a role in shaping the direction of the legal profession. But we as legal educators often lament the condition of the practice of law today; we do little to help our students transform it.

Instead of seeing the third year of law school as an opportunity to train students to get ready to enter the world of legal practice, we should envision it as a way to teach students to transform the world of legal practice, guiding them in shaping their careers not just to fit into the existing structure, but to chart their path in more bold and creative ways. To be honest, I don't know how to do this, but it is a question legal educators must begin to think about. It sounds idealistic and is a very daunting challenge, but we should try harder. We should be ashamed that so many of our students are unhappy in their careers. It is in part a failure of our educating them. But streamlining law school to better accommodate the existing realities of the legal profession strikes me as going in the wrong direction.

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Appleman: 9/22/05, 09:04 AM
Dan, here is a subject on which we both agree. Legal education thus far has done a poor job in preparing students for paths other than the classic trajectory of law firm work. The fact that 75% of lawyers are unhappy with their work is a testament to this fact. Although there are always the few students who are motivated enough to buck the trend and follow their own hearts, the vast majority of students, as you note, follow the path of least resistance. So something, indeed, needs to be done.

But I'm still not convinced that we need a full three years to do a better job teaching students about the law and its varied paths. One of the big problems I identify in law school education is the "sink or swim" aspect of it, particularly in first year. I realize this may be a holdover from the old days—where, famously, only 1 in 3 students made it through the first year—but since most students now stay the distance, I think a lot more mentoring is needed throughout law school.

One of the perennial complaints that students have, in any law school, is that their professors are remote and unapproachable outside class. Of course, individual professors may vary on this—I certainly hope I'm not perceived this way—but as a whole, how much mentoring is really going on? This is something at which law schools could do a much better job, and I think it needs to be done beginning first year. Although I like your idea of using the third year to allow students to really explore their options and think about social reform, I don't think it can wait that long. We need to integrate these ideas from the very first day.

Like you, I'm not really sure how to re-envision a law school experience that would provide as much information about alternative paths as it does about law firm work. But my gut sense is that something's got to give—there are too many unhappy law students and too many unhappy lawyers out there to allow the current structuring of legal education to endure.

Solove: 9/22/05, 02:25 PM
Laura, we both strongly agree that there's a problem in the legal profession, that something must be done about it, and that law schools should be playing more of a role in shaping the profession. Where we disagree is in what kind of role the law schools can play. You identify unhappy law students and notice a big problem in law schools as the "sink or swim" aspect, but I don't find this to be the case for most law students. At the law school I teach at—and at the school I previously taught at—most students are quite happy. They enjoy learning about the law. They are optimistic about their careers. Relatively few "sink" (there are some, of course, but not many) and it is not my impression that the students find law school to be like The Paper Chase or Scott Turow's 1L.

I agree that reform shouldn't just start with the third year, but I believe that a more streamlined law school experience of just two years would promote more of the problems than address the solutions. It would make law school into even more of a trade school. There have been recent discussions on the Conglomerate Blog and on PrawfsBlawg about setting up a "dual track" law school education, one for practitioners and one for future academics. I think that this is a mistake. It assumes that the more theoretical and interdisciplinary courses in law are unhelpful to practitioners. It assumes that a good "practical" legal education for practitioners must consist of a heavy dose of legal doctrine. But legal doctrines change; they vary from jurisdiction to jurisdiction. What matters most in law school is getting the most robust, rich, thought-provoking, and mind-opening education about the law and the legal profession. So instead of streamlining law school to focus more on the legal doctrinal areas, I think that law school is working well by not succumbing to this pressure from the world of practice, by insisting on giving students a more rounded education, by insisting that students think about the "why" of the law, not just the "what" of it.

The missing components—which I agree should occur throughout a student's law school education—are (1) an increased focus and attention to how students might practically pursue and implement some of the normative ideas of law reform that they are taught in law school; (2) more mentoring of law students by professors; and (3) the development of courses (or the taking of time within existing courses) to discuss how students might craft their legal careers. The mentoring is easy—it is something I do already, as I believe very strongly that mentoring is part of my job as a professor. It is too often underemphasized as a component of our jobs, which are understood as primarily teaching, scholarship, and service on committees. I think that mentoring is a critical aspect of what we do—perhaps one of the most important things we can do for our students. The other two components mentioned above are more difficult because I don't know the answers. These are tough questions, ones that many law teachers haven't focused on very much and haven't discussed. I hope that we begin to have more conferences and discussions on these issues at AALS and in other venues.

So although we disagree about the effects of the length of the law school educational experience, we agree a lot about the problems that need to be addressed. If we're preparing our students for careers in which 75% are dissatisfied by your estimate, then we owe it to our students to look seriously at this issue and to see what we can do to change it. Instead of molding law school so it is more responsive to legal practice, perhaps we should think about how to mold legal practice so that it is something most
students find fulfilling.

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Appleman: 9/23/05, 08:38 AM
Dan, as you point out, we have many points of agreement here. I, too, believe that mentoring is as important a part of my job as any other aspect, and that we need to begin thinking about re-conceptualizing law school from first year onwards. More important, I think we both recognize that legal education has done a poor job in preparing our students for life as lawyers—and that this aspect could be as critical as anything else we do in the academy.

I wonder, however, how easily a continuing focus on theory and interdisciplinary learning (which I support) would be implemented in the less elite law schools. Although I agree that we should not develop a two-tiered system for practitioners vs. academics—because all students, no matter where they end up, should learn more than just straight doctrine—I think that teaching the "how and why of the law" (as you put it) is lot easier to implement at the top law schools than elsewhere. I'm not arguing for a doctrine-only curriculum in certain schools, but if we really are going to try to re-think law teaching from the ground up, we need to take into account the realities of the more local law schools.

To sum up, if I was certain that each semester of law school was both useful and helpful to our students, I would be much less concerned about the length of legal education. If each year counts and makes a real difference, then by definition it is worth it. The challenge for both of us, as law professors, is to ensure that the necessary change in legal pedagogy happens.

Solove: 9/23/05, 11:42 AM
Laura, you point out the difficulties of teaching theory and interdisciplinary perspectives on the law in the "less elite law schools." I think that teaching theory is difficult no matter where you teach; that rarely is legal theory so complex that only students in a few top schools can grasp it; and that there shouldn't be a different kind of education for students at less elite law schools than at the very top ones. I think that a good legal education consists of seeing the law from an interdisciplinary perspective and understanding the law beyond mere doctrines. Of course, the biggest challenge is how to integrate theory and interdisciplinary perspectives into the class. I definitely believe that it can be done successfully.

I also believe that courses that are largely theoretical and interdisciplinary can work at any law school. For example, I have taught law and literature many times since I began
teaching, and my students have found the class to be rewarding even though it has a very large theory component. In this class, I often get a number of students who are very unsure about whether law is the career for them, but who have really found more direction by the end of the semester. Some learn that there is a side of law that fascinates them; some realize that they don't want to be lawyers but want to pursue policy or journalism. Others who do know what they would like to do still enjoy the opportunity to learn how to integrate the humanities that they loved in their college studies into the law. Of all my courses, law and literature is the one that I think has the most impact on students' lives.

The third year of law school may be far from efficient, but all it takes is for one course or one activity or one experience to change a student's life. Exploration is often not efficient—there are a lot of dead ends—but there is a value in the process. That said, you are certainly right that too many students are not getting enough out of all three years of law school.

Shortening law school will not help, however, to give our students what they need. Instead, I recommend that we think about how to make law school a richer experience for more students rather than find ways to pass them through more quickly.

I've enjoyed debating you this week. I think we agree on a lot, and I hope that readers of this debate will help us continue the discussion about how we can improve legal education.

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