August 29, 2013
President Obama: "Too Many Notes"
Posted by Christine Hurt

Unless you've been trapped watching videos of Miley Cyrus all week, you probably are already sick of the "should we eliminate the third year of law school" meme kickstarted by none other than Pres. Obama, law grad and former law teacher, not so helpfully stating flatly that "law schools would probably be wise to think about being two years instead of three years."   (Paul Caron is compiling responses: start here and work back.)  Now, Presidential candidate Obama campaigned for a NCAA college football playoff, which apparently is happening, so we'll want to watch this carefully.  But, Obama's remarks to me sounded a little too much like Emperor Joseph II in Amadeus suggesting to Mozart that his work had "too many notes."  When the Emperor's character went on to suggest that the composer cut "a few," Mozart's stunned character asked the Emperor "which few do you have in mind?"

There are several good reasons to consider lopping off the third year of law school, or really for the ABA to allow students to sit for the bar after two years of law school, leaving law schools to make their own requirements and differentiate themselves.  However, before we all say that 3 years is too many, we need to consider all the implications:  pedagogical, economic and practical.

Pedgagogical (Too Many Notes)

A repeated refrain among those who cheer the death of the third year is that their own third year was "worthless," "useless" or some other-less.  But, this is hardly the fault of the year.  Law schools decided some time ago to not have required courses past the first year besides PR and an occasional anomaly.  So, your third year is really what you make of it.  Back in the day, many students already had gainful employment by then so coasted through the third year.  (Hence the old adage of First Year, scare you to death; Second Year work you to death; Third Year bore you to death.)  Had we just lopped off the third year, I couldn't have taken the three tax classes that had prerequisites or securities regulation.  Those were pretty good investments in my practice career, so I'm glad I took them. 

In fact, it's hard to think of a way to just cut off the credits one gets in the third year and figure out how students will take courses that actually lead to gainful employment, but which need prerequisites.  Basically every law student would have to take BA and Evidence and Federal Income Tax and PR in 2nd Fall just to be able to take higher-level courses in the Spring.

So, why not shrink the first year?  I went to college for three years, as did a lot of students, because I tested out of a lot of freshman classes because I had an awesome high school education.  However, first year law school isn't about Algebra or reading The Great Gatsby one more time.  We have made the first year "nicer" by making first-year classes fewer hours and having fewer subjects in a semester, so fewer exams, but there's not a lot more condensing that can happen.  We could make it harder by adding a class or two (BA or Evidence or Income Tax), but there's not much we can do to Torts, Property, Civ Pro, Contracts, Crim Law and Con Law.  Besides being building blocks, they are on the bar.  Every bar.  100% of the MBE, and up for grabs on every state bar.  The sitting of the Georgia Bar in 1993 was 100% first year courses.

So, Obama didn't say which notes he wanted to cut.  But, he wanted to add externships and clerkships, which he implies would have a better pedagogical benefit than more coursework.  What Obama didn't say was whether these would be paid or unpaid.  If unpaid, they have to be part of an educational program (back to a paid third year with supervising instructors) and meet pretty stringent rules that are regularly broken by for-profit businesses and firms.  If paid, then that's even more awesome, except that paid employment after graduation has been what we were going for anyway.  If some sort of half-paid apprenticeship/residency, then we need to rewrite some federal regulations.

Economic

The consensus seems to be that if law school were shorter, then it would be cheaper.  Matt Bodie argues that law schools will charge the same because the demand does not seem price-sensitive anyway.  Even if that is so, 3 years of paying $100k in tuition plus zero income is more expensive than 3 years of paying $100k in the first two years plus receiving income in the third year.  So, a shorter law school theoretically helps the three-year balance sheet.  Maybe.  You would have to back out any income that would have been received working in the summer after first year (not the norm) and the summer after second year.  Why do I think there wouldn't be employment in the summer after second year?  Because I think students would have to go to school full-time that summer to get the classes that they want to take during those two years.  So, six semesters would be cut to four semesters and a summer, if not two.  This would be along the lines of the Northwestern Accelerated JD

But, if the third year became an unpaid externship or half-paid internship, then it might be a wash from an economic standpoint.

Practical

I've already suggested that one practical limitation to the 2-year plan is the bar exam.  Not only does the bar exam heavily test the first-year subjects that otherwise might be ripe for cutting, it tests a lot of upper-level courses that might go by the wayside, too.  Many states reserve the right to test on multiple subjects such as family law, secured credit, commercial paper, wills and estates, business associations, evidence, criminal procedure, conflicts, and oil and gas.  I always tell my students not to take classes just because they are on the bar, but at some point, if no one is finding time to take commercial paper or wills and estates, then bar passage will suffer.  The result of the 2-year JD may be to force students to rely even more heavily on expensive bar review programs.

Those criticizing the two-year critics say that professors are entrenched and so would never like this plan.  That might be right.  No one likes it when their cheese is moved.  These law schools will still need professors, and probably the same number, but we'll have to teach a more limited palette.  We will have to have more sections of foundational courses and many fewer upper-level courses.  The seminars, colloquia, and cross-listed courses will go by the wayside.  Note that for every person that says their third year was a waste, others say that a colloquium was the best part of their education.  And, almost everyone will have to teach in the summer.  There will be more teaching and less writing, which will make the job less attractive to most, though more attractive to some.

A lot of other things will change:  mock trial, moot court, law journals.  To finish all the coursework needed to graduate in an abbreviated time to prepare for externship or other employment, time for in-house practical experiences like trial ad, negotiation, mediation, supervised clinics and the like will be scarce.  So, the unintended consequence might be less practical training, which is what this whole argument was about anyway. 

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