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Law professor advocates requiring law school to be four years instead of three because there’s a lot more law these days

[ 61 ] November 6, 2013 |

Is joke yes?

Not!

[T]here is today much more law to learn than there was in the past. There are today whole new fields of law which did not exist a generation ago, e.g., health care law. Moreover, within pre-existing areas of the law, the amount of law has expanded enormously over the last two decades.

Consider, for example, the area in which I write and teach, taxation. No one doubts that the current tax law is more complicated and extensive than the taw law in effect when I went to law school. Important subspecialties, e.g., pensions, partnership tax, and international tax, have grown in complexity and importance.

Many critics belittle the substantive business of legal education by dismissing my tax courses as theoretical or doctrinal. But my courses are where my students learn the law and there is much more law to learn than there was a generation ago.

I don’t even . . .

Compare and contrast: More books are being published than ever before. We should therefore require every elementary school to spend more time teaching people to read.

On top of everything else, this guy is a tax law professor! If there’s a single area of law where it should be obvious that teaching people the minutiae of the current legal rules makes about as much sense as forcing people to memorize current phone numbers, it would be tax, where the substantive rules are constantly changing at a dizzying pace.

But wait, there’s more:

The most serious argument against a fourth year of law school is the additional cost it would entail. Legal education is already too expensive. Adding a fourth year would impart even greater urgency to task of controlling the expense of law school, just as there is currently great urgency to the task of controlling the costs of undergraduate education.

As a practical matter, this adds up to arguing that law school is too expensive, so let’s reform it by making it more expensive.

Two features of this sort of thing leave my mind especially boggled:

(1) The complete absence of even a gesture toward the need to engage in some sort of actual cost-benefit analysis. The argument for adding a fourth year of law school must be based on the premise that the marginal value of a fourth year of law school for law graduates would be greater than the marginal cost (For obvious reasons neither Prof. Zelinsky nor anyone else is going to be willing to defend this proposal on the grounds that it would be good for law schools). But the author clearly feels no need to make such a gesture. The law school reform movement is often criticized for being anti-intellectual, but it would be difficult to imagine a more pseudo-intellectual atmosphere than one which generates arguments of this type.

(2) The apparent pointlessness of this sort of proposal. Individual law schools are of course already free to add a fourth or fifth or tenth year of law school if they wish, but they don’t, because almost nobody is going to pay for a four-year JD degree if they don’t have to (this is just another way of saying that, without enforced cartel pricing, the market for four-year JD degrees remains completely non-existent, because almost nobody believes that a fourth year of law school is going to be worth the price).

So the four-year law school can’t come into existence without a rule requiring it issued by process that would include the ABA promulgating such a rule, and state bar associations assenting to the new ABA rule (This is how the three-year law school requirement was created in the 1920s. Prior to then there were many two year law schools, although as the ABA noted at the time, these schools tended to cater to the Irish Italians Jews working people the kinds of students that lowered the overall quality of the profession.)

The odds of such a rule being promulgated can be safely calculated as less than zero. So what is the point of this sort of thing? I suppose the answer has something to do with psychology of professional identity maintenance, or something. . . Commenter Bloix makes the perceptive observation that the real function of this kind of argument is as a sort of Overton Window strategy. Whether such strategic considerations are considered consciously by their authors is another interesting question.

Comments (61)

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  1. Bloix says:

    I doubt he really thinks that there should be a fourth year of law school. It’s more likely that he’s trying to re-frame the debate over whether three years is necessary or two years would be enough. If he can make the status quo the middle ground he’s more likely to hold it. After all, look at your post – you wrote eight paragraphs on the proper number of years for law school and didn’t once mention the current proposals that it be cut to two.

    • Modest Proposal says:

      Bloix, I think you’re right. With even Obama dumping on 3 years, why not ask for 4. Then, when the ABA trots out the 2 year proposal, you can be a citation in the “some scholars actually believe 4 years are necessary” column.

      I also note that there is actual discussion in the med school camp of dropping the requirement for an M.D. to 3 years.

  2. Shakezula says:

    There are today whole new fields of law which did not exist a generation ago, e.g., health care law.

    The fuck?

    • njorl says:

      Law is peculiar that way. Physics, Chemistry, biology, computer science -they are pretty much the same as they were 100 years ago.

      • L2P says:

        I think the point is health care law was, like, a thing a generation ago. As in, it existed.

        There’s a health care specialty firm I’m litigating with – it’s been around since the 50s. It’s been a heavily regulated industry for decades.

      • L2P says:

        Not saying you don’t agree with that btw.

        • Srstly Dad Y says:

          The tax prof means that the megacorporate law firms didn’t have “health-care practice groups” a generation ago, which I think is roughly true. IIRC, they rolled out the first ones in the late 80s, about a generation ago.

      • Really, no, unless you think quantum mechanics, the structure of DNA, plate tectonics, etc, were all discovered in 1912.

        However, if you want to make the point that degrees in those fields haven’t changed in the amount of time required to earn them, then you’re correct.

        • (the other) Davis says:

          I think that was snark. The use of “computer science” together with “100 years ago” is a pretty clear tell.

  3. Law school to 10 years! says:

    I think that if Harvard, Stanford, or Yale wanted to add a third year they could do so pretty safely, since there is so much demand to attend those schools. They would lose some students to the other two schools, and some to Columbia and the University of Chicago, but not as many as one might think. The change might then find itself trickling down the heirarchy of law schools since pretty much every law school these days seems to fashion itself a top tier mega-fancy institution.

    Of course Harvard, Stanford, and Yale have no interest in making such a change because A) They are probably the least cash desperate law schools, being attached to universities with huge endowments, capable of maintaining full enrollment, and not having tuition eroded by scholarships and B) The non-Phd faculties there would never want to admit that their own 3 year degrees were somehow deficient.

    • José Arcadio Buendía says:

      The non-Phd faculties there would never want to admit that their own 3 year degrees were somehow deficient.

      This is a good argument. It’s why attorneys with JDs aren’t called “doctor.” When the issue came up, the ABA people who decided it had LLBs. (=

  4. Hogan says:

    There’s already a fourth year of law school that deals with specialties like tax law. It’s called an LLM. Oh wait, he wants to make it mandatory.

    • Katya says:

      Yeah, he’s basically making an argument that LLMs should be more widely available for certain complex specialties, like taxation or healthcare law or whatever. Which actually kind of makes sense. But if I’m not going to go into those specialties, why make me spend an extra year of law school learning about them?

      • Paul Campos says:

        One thing we’re not suffering from in legal academia is any shortage of LLM programs.

      • Shakezula says:

        But if I’m not going to go into those specialties, why make me spend an extra year of law school learning about them?

        Oh no rea$on. No rea$on at all.

      • José Arcadio Buendía says:

        I don’t think law schools are competent to teach most specialties in the first place. If you want to be a specialist in International Sports Space Law (h/t S.L.), then you need to find a job in that field. If that isn’t realistic, having an LLM won’t make it so.

        • TribalistMeathead says:

          Failing that, you need to make damn sure you want to do nothing but practice International Sports Space Law for the rest of your career.

  5. Scott Lemieux says:

    e.g., health care law

    What about international space sports law? Hell, 10 years ago that wasn’t even a real field!

    Adding a fourth year would impart even greater urgency to task of controlling the expense of law school

    Those contradictions won’t heighten themselves!

    • BamBam says:

      There’s certainly no sense of urgency on the part of the law schools to control the expense of law school. Why should they do so, when IBR/PAYE mean that most graduates will pay the same regardless of whether the school gets 100K or 300K of their student loan money?

    • Anonymous says:

      Fields? Where we’re going we won’t need fields…

  6. Modest Proposal says:

    What I love about this argument, is how it effectively guts and undermines the old saw about law school teaching students how to think like lawyers.

    Many critics correctly point out that if law school were analogized to mammalian anatomy, the proper comparison point is a bull’s tits. Law school teaches you very little of substance and is of almost no use to the practicing bar. Now this clown wants to say that there is so much substance to teach, we can’t possibly do it in 3 years. Such argument would be somewhat persuasive, if you made any attempt to do any substantive teaching at all. Your colleagues correctly abandoned this argument to go with the difficult to disprove “learning to think” argument.

    What I most love about the “learning to think” argument, is that it is an overt confession that law schools do not, and cannot, produce practice-ready graduates. This should be a concession that law graduates should be limited to the demand for law school finishing school (a/k/a “jobs for recent graduates”), but schools get funny about this. If you don’t produce troops skilled to hit the ground fighting, then maybe your ROTC program should be capped to the number of expected seats in boot camp.

    • Richard Hershberger says:

      I am a paralegal in a small law firm. One of the attorneys once told me I thought like a lawyer. She meant it as a compliment, so I tried to be gracious about it.

      But seriously, to “think like a lawyer” is not different from thinking like a historian in my hobby interest of early baseball history. You keep track of what issue you are researching, and go search through source material. The only real difference is that the searching is much easier on the legal side. Early baseball history mostly means sifting through old newspapers, most of which require travel to the right library and which are completely unindexed. Legal research, on the other hand, is a breeze. I generally use Google Scholar.

    • L2P says:

      I don’t think that’s totally true. There’s a lot of substance learned in law school (procedure, crim, property, business orgs and con law in particular). I think the “We teach how to think like a lawyer” is more directed at what’s different between law school and, say, a poli sci grad degree.

      And there was a difference, at least at my school.

      • Katya says:

        I learned a lot of substance in my law school classes. Some of the “thinking like a lawyer” is training you to spot relevant facts, identify issues, apply precedent in an effective way, determine whether the difference between two situations is legally meaningful, etc. I found that I learned the least substance in my required first-year classes like property and torts, but a lot in many of my later electives: criminal procedure, evidence, corporations, administrative law, etc.

        • Tom Servo says:

          I learned substance too I think, outside of 1L. I took a great seminar on the Supreme Court as an institution. Never helped me practically, but gave me a much deeper understanding of that branch of government. For anyone who’s interested in American history, the Court is a fascinating and essential institution.

          Anyway, from memory, I learned: how much of a clusterfuck 4th amendment jurisprudence is, hearsay, the Alternative Minimum Tax (seriously, that’s all I remember from Tax). Probably the most useful classes I took were Remedies, Evidence, and Corporations. Civ Pro was good too, even if your state departs from them-it’s good to learn about the system. Those helped me straight out of the gate. Everything else, not so much, but there were some diamonds in there.

          I don’t buy most of the thinking like a lawyer. One doesn’t need special training to spot relevant facts and identify relevant issues. But then I’m mostly a “learn by doing” type. Once I took a clinic, I realized how pointless all but a few doctrinal classes seemed.

          I will say that legal writing did teach me a lot, at least in terms of appellate briefs. I think it took that and a moot court competition to really “get” appellate advocacy and how much of an art it really is to turn bullshit arguments and distinctions into plausible ones. But even that I only learned by actually reading and writing briefs, not the useless how to book on writing we had.

          I dunno, there definitely was *some* X factor. The most valuable things I improved were my research skills, and how you’re expected to actually make legal arguments, be it a memo or brief or motion or whatever the fuck. Almost everything else but a few unusually useful doctrinal classes is just pure exposure/immersion that I think you could just as effectively get as an apprentice. I learned more the first week of my 1L summer judicial internship than in my entire 1L here, and no, that’s not hyperbole at all.

  7. Linnaeus says:

    Nearly every time I read one of these posts, I’m reminded of the many times in my life (prior to graduating college) that people thought I should go to law school. Now, that would have been nearly 20 years ago, so my outcome may have been different than for law school graduates now. Still, I’m not sure that would have been the right choice, although going to grad school turned out to have its own pitfalls.

    • José Arcadio Buendía says:

      I went to law school in the 90s. It would have been different. Not because of law school, but because you would have had a fighting chance to get some real world experience when there were jobs.

  8. burnspbesq says:

    About the only thing of lasting significance I learned in my J.D. tax course was that I wanted to do tax as a career. The real learning was done at the LL.M. level.

    That system ain’t broke. Why are we talking about fixes?

  9. José Arcadio Buendía says:

    oh, STAHP law schools.

    Two years is more than enough. Everyone knows the only point of law school is destroying your soul in 1L. After that it’s just a bunch of zombies repeating the motions on other made up subjects that aren’t really what they say they are. Do the 1L initiation rite if you must, have a couple other substantive classes and some practicum and let ‘em go.

  10. fledermaus says:

    For some chuckles read the supporting comments on a manditory 4th year here:

    “I think at least half of an additional year – in the US at least – should be devoted to making sure law students understood (1) the classics of political philosophy from Plato and Aristotle through Machiavelli, Hobbes, Locke, Montesquieu, and the Enlightenment, and (2) political history (of the sort no longer fashionable) covering the formation and decline of republics ancient, medieval and modern”

    Holy clueless lawprofs, Batman!

    • José Arcadio Buendía says:

      There’s a billboard and yellow pages accident attorney in my town that starts a lot of his filings with quotes from Plato and so forth. Mostly people just think it’s funny.

      But, um, I don’t know. Maybe teaching the classics like how to take a deposition and file a basic motion would be good too.

      • TribalistMeathead says:

        Nah, why do that when the future graduate’s law firm can teach them how to do that, while getting their client to pay them to do so.

        • José Arcadio Buendía says:

          MR. RECENT GRADUATE: So, Mr. Witness, would you say that what you did was Machiavellian?

          COURT REPORTER: Can you spell that? M-A-C-K—-

          MR. RECENT GRADUATE: No, no, M-A-C-H—

          COURT REPORTER: H?

          MR. RECENT GRADUATE: H.

    • sibusisodan says:

      through Machiavelli, Hobbes, Locke, Montesquieu

      Those are all cricketers, Bruce…

    • Erik says:

      Having practiced “door law” (as in “we take whatever comes in the door”) for a few years, it would definitely have been useful to my practice had I been taught any basic business/accounting/finance skills in law school (for instance, how to analyze a balance sheet, how to spot obvious fraud on a tax return, tax implications for small business owners, etc.)

  11. MacK says:

    One of the issues in all of this is that law schools are have many 2nd and 3rd year courses with subjects or remote and tangential relevance to actual legal practice. How would a 4th year change that? Moreover, why not simply increase the number of classes 3rd years should at least audit – they are having a hard time getting part time law jobs these days.

  12. Although I think it would be a terrible idea, a four year undergraduate law degree– which would make a student bar exam eligible– might address the notion that there is more law than can be covered in three years. Depending upon core requirements it might be a legitimate liberal arts education as well. In a lot of European jurisdictions that’s how it’s done.

    Of course, the real problem with this approach would be that its graduates would, typically, have even less real world practical experience upon which to base their advice to clients– but training lawyers to give real world practical advice isn’t really the business law schools are in, is it?

    • MacK says:

      In my experience the pure law-laws, i.e., 3-4 year law undergraduate, then 2-3 years legal training does not produce very good lawyers. In the UK I have generally found the non-law undergraduate degrees, followed by diploma and then training to be better rounded lawyers, more capable and a lot less smug.

      • Philip Arlington says:

        That isn’t much of an argument for not making law an undergraduate degree in the US. Your preferred option in the UK runs as follows, for someone who takes no detour after leaving secondary school:

        3 year undergraduate degree
        1 year postgraduate law course
        1 year vocational law course
        2 years (paid) training
        Qualified lawyer at 25

        The equivalent system in the US would be

        4 year undergraduate degree with a major in law
        1 year vocational law course
        2 years (paid) apprenticeship
        Qualified lawyer at 25

  13. BoredJD says:

    This article will appeal to the jack of all trades, king of none attitude that most law professors have. The whole “we’re really smart people because we got good grades on 5-7 1L exams and worked for a judge for a year, so we’re qualified to teach everything and anything and our students couldn’t be made any worse for it!” would be funny if students weren’t paying out the nose.

    • Paul Campos says:

      That seems rather cynical BJD. My comment in the Taxprof thread fledermaus links above is, I think, a devastating retort to your disturbing lack of faith in the system.

      • Unemployed Northeastern says:

        Exactly, Paul. Frankly, given the necessary education law students need in everything from economics to art history to archeology and string theory, it is hard to see how even four years is enough time to learn how to practice law. And that, of course, is before we get into the crucial issue of whether to include additional, crucial legal courses like “The Diaspora of Moral Relativism as it Relates to the Rule Against Perpetuities” and “The Hermeneutics of Legal Heuristics.”

        Frankly, a law degree should take at least seven years to complete, and the resulting degree should be a PhJDMBA.

        • AcademicLurker says:

          given the necessary education law students need in everything from economics to art history to archeology and string theory, it is hard to see how even four years is enough time to learn how to practice law.

          But it will be awesome when you get to use string theory to get a client off.

      • BoredJD says:

        I’m not convinced by these fluffy arguments about curriculum. But after reading “Million Dollar Law Degree” where the authors convincingly and disinterestedly find that a law degree is worth a total of $333,333 per year, then I think Zelinsky is being far too conservative. If each year of law school is worth a third of a million dollars, then why not make law school 30 years long!

        I look forward to reading the follow-up “Ten Million Law Degree.”

  14. Bloix says:

    “Law school teaches you very little of substance”

    The judge I clerked for, Modest P, used to say, about how the casebook method never brings students into contact with the documents and events that are the subject of legal disputes:

    “Imagine if doctors were trained the way lawyers are trained. There would be a hundred students in a lecture room, and the professor would say, assume a kidney.”

  15. ichininosan says:

    Professor Edward Zelinsky has no idea what his students need. So, let’s introduce him to his students. There were 387 intrepid souls who graduated from Cardozo Law School last year. I say “intrepid” because, using figures provided by the school itself, unless they received discounts, those students just paid $225K for a legal education. Sadly, only 39 students went to work for the big law firms or federal judges that are just a walking distance away from the school. Perhaps professor Zelinsky is thinking only of that 10% of the class. But what about the other 348 students? Does Professor Zelinsky think that they need another $76K worth of law school? He could start by asking the 81 non-employed graduates what they think would improve their law school experience. I’m sure they have the time to share their thoughts.

    http://www.cardozo.yu.edu/directory/edward-zelinsky
    http://www.lstscorereports.com/?school=cardozo&show=ABA
    http://www.cardozo.yu.edu/current-students/tuition-and-financial-aid/tuition-and-expenses

    • West of the Cascades says:

      What would improve their experience? MOAR SCHOOL! Then after they’re a cool $300K in the hole, their chance of getting a job will go from 10% to about 11.6%. Improvement!!!

      Professor Zelinsky obviously likes him those federal student loan checks.

      I was lucky – I enjoyed all three years of law school (well, the last two) because I took the advice of folks who told me to take courses I enjoyed, not “recommended” courses and certainly not substantive courses that were going to be on the bar exam. I later went to get an LLM after practicing for five years so I could pivot from a private firm to a public interest practice in a specific specialized area.

      What I learned from four years of law school, doing it the way I did it, is that four years did little more to prepare me to practice law than two years did — and the two years that really prepared me to do what I wanted were the 1L year and the LLM year.

  16. OhioDocReviewer says:

    Unfortunately, there isn’t a corresponding abundance of law jobs to justify increasing the standard full time law curriculum from three to four years…or to warrant 200+ ABA accredited law schools…or to support an average full time cost of attendance of $35,000 to $40,000 per year, et cetera.

    • Informant says:

      Unfortunately, there isn’t a corresponding abundance of law jobs to justify increasing the standard full time law curriculum from three to four years

      Since I would think increasing law school to 4 years would heighten barriers to entry for the profession, it would actually be beneficial with regard to the supply side of the legal job market — fewer people would attend law school in the first place for sure, and adding a fourth year probably also would increase the total dropout rate as well, resulting in a smaller pool of job applicants.

  17. philadelphialawyer says:

    “On top of everything else, this guy is a tax law professor! If there’s a single area of law where it should be obvious that teaching people the minutiae of the current legal rules makes about as much sense as forcing people to memorize current phone numbers, it would be tax, where the substantive rules are constantly changing at a dizzying pace.”

    Of course, that pretty much distorts/ignores what the guy actually said. He said:

    “No one doubts that the current tax law is more complicated and extensive than the taw law in effect when I went to law school. Important subspecialties, e.g., pensions, partnership tax, and international tax, have grown in complexity and importance.

    “Many critics belittle the substantive business of legal education by dismissing my tax courses as theoretical or doctrinal. But my courses are where my students learn the law and there is much more law to learn than there was a generation ago.”

    He is NOT saying that law students should be taught, as you put it, “the minutiae of the current legal rules,” which, as you say, change pretty fast in tax law, but rather that whole areas of tax law, whole new subspecialties, have come into existence and are becoming ever more complicated. And that those areas should be studied. And, in the next paragraph, he says that his courses are criticized as being too “theoretical,” which undercuts further your criticism that he wants to teach the fine points of rules that are likely to change tomorrow. Unless he is simply lying, or doesn’t know the content of his own classes, he is teaching theory and broad doctrine, not technical rules. But, he is saying, the field has so exfoliated that even doing that it is hard to cover all the important sub areas.

    Once again, I don’t get it. A guy makes a proposal, seemingly in good faith, and presents his case for it. It seems to me that it is not written in stone that law school should be three years, four years, two years, or any other particular amount of years. Is the length of a law school education something that can’t even be broached, in terms of proposals?

    A few other things you left out…the author proposes to use technology (presumably, computer/online teaching) to cut costs and add to classload without overstressing professors, and wants to cut administrative costs, and, perhaps most importantly, also justifies the fourth year on the basis of adding clinical work. As an attorney, I can tell you that actually learning how to do what lawyers do, as opposed to learning the law and learning how to learn the law (the famous how to think like a lawyer stuff), is definitely under taught. In addition, he wants to reduce the reliance on specialty LLMs, which, IMHO, is not a bad idea either.

    All in all, I’m not sure his proposal is a good one, but it is not just stupid either. And deserves better than the back of your hand, which is what you gave it.

    • BoredJD says:

      “the author proposes to use technology (presumably, computer/online teaching) to cut costs and add to classload without overstressing professors, and wants to cut administrative costs, and, perhaps most importantly, also justifies the fourth year on the basis of adding clinical work.”

      You mean overstressing them by making them teach more than two classes per semester?

      Notice how none of these proposals ever seem to involve any actual change to a tenured professor’s material circumstances? “Everybody gets hurt but me” is usually not a sign of “good faith.” His cursory reference to “even greater urgency to task of controlling the expense of law school, just as there is currently great urgency to the task of controlling the costs of undergraduate education” adopts a very typical mentality among law professors and deans that there’s really no one to blame and nothing to be done about the enormous run up in the cost of law school, since hey, undergrad costs more now too, and frankfurters used to cost a nickel, all thanks to the Market, praise be to him.

      The best way for a law student to learn to be a lawyer is getting a job as a lawyer. Not adding uber-expensive clinical programs or various “economies” and “panaceas.”

  18. dominique wilkins says:

    There is an argument to be made for a fourth year in terms of knowledge and learning, especially in certain areas where specialization would help.

    However, if schools are going to do this, why not make it tuition-free for their own graduates. This may happen as schools will want to fill up some empty seats in classes and also give their own students help in getting employment or better knowledge if they open up their own shop.

    That said, this is only VOLUNTARY on behalf of the students – if they don’t want to do it, they don’t have to.

    • Aaron says:

      When I was in law school, the legal writing program was taught by students. After I left, the school brought in adjuncts (you know, lawyers not ‘qualified’ enough to be ‘real’ law professors… practitioners, if you can imagine… and thus were worthy of little more than helping students learn practical skills) to teach the program. Clinical professors, those who taught hands-on legal skills to students working with real, live clients, were on a whole different plane of existence as compared to the academic faculty. If it needs to be said, a much lower plane.

      I suspect that some of my law professors wouldn’t have been able to comprehend the idea that if you don’t care about something (specifically, the actual practice of law), have little to no experience with it, and believe it is largely beneath you, you probably won’t be able to teach it well. Nonetheless, that does seem to be true. Unless it were turned over to those adjuncts and clinical professors, which by law school measures would seemingly make it a far less worthy experience than the first three years of law school, how would the fourth year be different than the third year?

      For that matter, why not make the third year voluntary and free?

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