Saturday, January 7, 2012

Can students prepare for law practice in the three years of law school? And what if they can't?

Do lawyers need more than three years of law school? Or could they get all they need to know in a three-year program better assembled than those most law schools have now?

Let's approach this question in a practical way.

First, probably just about every law school has a prescribed first-year curriculum consisting of courses introducing students to basic areas of legal doctrine, such as contracts law, and to basic skills of lawyering (sometimes including interpersonal skills such as interviewing and counseling, always including legal research, legal writing, and "thinking like a lawyer"). It's possible to argue over which building blocks are the most fundamental, but I think few would deny the need for something like this starting year.

Second, in the following two years there are often more courses in important areas of law to be taken. Some may be required, others just more or less emphatically recommended. At New York Law School, where I teach, Constitutional Law and Professional Responsibility are required upper-year courses. Other courses that students might be well-advised to take include Evidence; Wills, Trusts & Future Interests; a basic Tax course; Corporations; and a class in Criminal Procedure. These seven courses add up to close to a full second year's worth of study. Students usually spread them across their second and third years, but let's imagine that they take these courses all together, in their second year. It's then just about complete. .

That leaves one year. Is there anyone who believes that a real introduction to the many complexities of practice deserves less than one full year? I doubt it. There are certainly people who believe this year, or most of it, should take place after graduation, but who would hire a lawyer with less than a year's experience if he or she could afford a better prepared attorney? (For that matter, who would hire a lawyer with one year's experience if he or she could afford someone with five years of practice, or ten?)

In fact, law schools today do not allocate a full year to practice training --whether in clinics, simulations, externships or other courses that focus on introducing students to the world of practice and inculcating professional strengths and values. Judge Jose Cabranes, at the Association of American Law Schools annual meeting yesterday, proposed that the third year be devoted to apprenticeship, and this would be a radical step. (I've proposed a version of this idea too, a "clinical year" on the lines of medical school clinical rotations.)

But if we imagine a law school consisting of two years of substantive law and introduction to lawyering skills, followed by one year of practice apprenticeship, we haven't described a program that provides all that a lawyer might need. In a curriculum like this, there's no room for training in economics, or in sociology, or in psychology; nor for jurisprudence or legal history or philosophy. I don't mean that these subjects could never come up. The first-year contracts course could introduce students to the economic analysis of law. A clinic could introduce students to psychological insights about clients. But these introductions will likely be just that. If, say, lawyers who want to deal sensitively with their clients need a serious understanding of how clients' behavior and wishes are shaped by their social and psychological makeup, the three years I've just described won't provide it. 

So what can we do? Well, here are some possibilities:

(1) We accept that we cannot teach anything except substantive law and applied skills; all broader, less strictly legal, forms of knowledge are less important or at least less fundamental. Realistically, if this means that students end their professional schooling without those other forms of knowledge, we must assume most will never acquire them. 

(2) We teach less of either substantive law or applied skills, thus making room for some of the other forms of knowledge in the three years of law school.

(3) We insist (as a colleague of mine suggested) that students study some of the related fields of knowledge before they come to law school; then law school can build on what the students have already learned.

(4) We offer, or require, at least one additional year of training, perhaps in the form of an LL.M.

There's a lot to be said about each of these. But I want to close this post by considering one problem shared by all four of them: they all seem to require law students to get at least the 7 years of post-secondary education they now receive, 4 in college and 3 in law school -- if not more. Yet the expense of those seven years, the debt that students incur to pay for them, and the troubling state of the law graduate job market have led to calls for programs that would enable lawyers to practice after as few as 5 years of post-secondary schooling. If we move in that direction, we lose teaching time. If nothing else changes, the result will be that we stop teaching something -- two years' worth of something, if we cut back to 5-year programs. What won't we teach? Is there any way we can teach what we now teach more quickly? Can we re-think what we need to teach, and find curricula that will set students on the right course better than our programs now do?

I'll keep talking about these questions in posts to come.

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