Marquette Law School Dean Joseph D. Kearney and U.W. Law School Dean Margaret Raymond at the 2013 Wisconsin Law Foundation Class of Fellows induction, where they spoke about the future of legal education in Wisconsin.
Oct. 16, 2013 – Rising law school tuition, increased student debt, and limited job opportunities are several factors weighing on American law schools, which have faced mounting pressure in recent years to make changes to the legal education system.
At the recent Wisconsin Law Foundation’s Annual Fellows Dinner, Marquette Law School Dean Joseph Kearney and U.W. Law School Dean Margaret Raymond spoke about the future of legal education while noting the challenges of change.
In particular, the deans teamed up to critique several law school education reforms proposed by commentators, including a call for two-year curriculums and less focus on legal theory in favor of practical skills. This article highlights their thoughts.
Recently, President Barack Obama suggested that law schools could reduce law school tuition by removing the third year of law school. The third year, he said, students would be “better off clerking or practicing in a firm, even if they weren’t getting paid that much.”
For years, other commentators and critics have suggested that a third year of law school is unnecessary. “In the first year, they scare you to death; in the second year, they work you to death; in the third, they bore you to death,” the old adage goes.
Dean Raymond noted that reducing the cost of legal education is a welcome solution to a host of current problems, including student debt. But she questioned whether cutting the third year of law school is the proper means to that end, noting the barriers involved.
“First, the ABA would need to be willing to accredit a J.D. program that provided a two-year law degree at a substantially reduced number of credits,” Raymond explained.
Currently, only law schools that require students to successfully complete no less than 84 credits to graduate can be accredited by the ABA. In general, students take an average of 15 credits per term, which equals about 4-5 courses per semester.
Some law schools, including U.W., allow students to finish in two years. But those students are still completing the required number of credits, just at a faster pace. This schedule, requiring summer coursework, limits other opportunities for those students.
“Second, state regulators would need to be willing to accept those [two-year] degrees as sufficient evidence of adequate training for the practice of law. In doing that, they are going to need to get support and agreement from the practicing bar,” Raymond said.
Diploma Privilege, Other Thoughts
Raymond also said that cutting the third year would require Wisconsin to rethink the diploma privilege, which allows graduates of the state’s two law schools to bypass a bar exam for admission so long as they meet certain law school curriculum requirements.
“Right now, the diploma privilege requires 60 credits of mandatory and recommended courses,” she said. “Most students take about 15 credits per semester, so we are going to require 60 credits of basic substantive knowledge. That’s two years right there.”
That doesn’t leave much time for legal clinics and externships, Raymond says, offerings that give lawyers more practical skills training and experience. “Losing that in the curriculum is something we ought to be worried about,” Raymond said.
Are two years of law school sufficient training for the practice of law? Should Wisconsin rethink its diploma privilege? Sound off in the comment section below.
“Remember, one critique of law school is that it’s too expensive, but another is that it doesn’t include enough practice-oriented skills training,” Raymond continued. “If we applied the current minimum diploma privilege rules to a two-year curriculum, students would not have the opportunity to take skills courses.”
As to Obama’s suggestion that a third year could be better spent as a clerk in a law firm: “That sounds like the same on-the-job training that practicing lawyers feel they don’t have the time to offer new graduates, or that they fear clients won’t pay for,” she said.
“A shorter program of legal education would release more lawyers into the job market, not fewer, in effect moving responsibility for the third year of legal education from law schools to the practicing bar. I’m a little skeptical about how this is going to work.”
Access to Justice
Still, Raymond noted that reducing the cost of legal education could help the country’s access to justice problem, since more lawyers could afford to do public interest work.
However, Raymond is not convinced that shaving a year from law school is the best way to bring legal aid to the large number of lower income clients who need it.
“It’s also a concern that students cannot pursue their passions and serve the clients they want to serve because they need to make more money,” Raymond said.
“There is welcome assistance for those students in the form of government-sponsored income-based repayment and public interest loan forgiveness, but the amount of debt law school graduates carry still has a profound impact on their career choices.”
Raymond highlighted New York’s proposition, outlined in an op-ed piece, that would allow law students to take a bar exam after two years to pursue public interest or generalist careers. But other students could continue with an advanced, third year.
“A proposal that offers different kinds of lawyers to different kinds of clients is something we need to be very cautious about,” Raymond said. “Not all poor clients have easy cases. And a law degree on the cheap for those with fewer resources has the potential to stratify the profession even more, if possible, than it already is.”
What about New York’s new rule that requires applicants seeking admission to the bar to demonstrate that they have completed 50 hours of pro bono work helping indigent clients? Is this something that would help the access to justice problem in Wisconsin?
“On its face, it sounds wonderful,” Raymond said. “If that requirement is designed to encourage students early in their careers, to recognize the value of service and to appreciate the richness it brings to their careers, then it will succeed.”
But Raymond voiced skepticism that such a requirement would go very far toward meeting the unmet legal needs of a broad swath of Americans, noting that current rules require law students to be supervised by attorneys when providing legal services.
“I can only imagine the heartfelt sigh that emerges from an overburdened lawyer in a legal services office doing landlord-tenant work who learns that not only does she have a burgeoning caseload of clients desperate for her help, but a burgeoning group of law students eager to perform pro bono services under her supervision,” Raymond said.
Practical Skills vs. Legal Theory
While Raymond focused largely on the suggested reform for two-year law schools, Dean Kearney focused on other aspects of potential reform, including the suggestion that law schools should teach more practical skills and focus less on legal theory.
Washington & Lee University School of Law in Virginia, for example, has reformed its third-year, eliminating traditional coursework from the curriculum. Instead, third-year students will earn their credits completely through practicums, clinics, and externships.
For instance, a civil litigation practicum simulates litigation of a civil lawsuit, and students serve as pseudo law firm “associates.” In a corporate counsel practicum, students draft documents to close transactions that simulate business dealings.
“Third year students will now move beyond the learning process of the first and second years of law school to prepare for the transition to professional practice,” according to the Washington and Lee Law School website explaining the third-year curriculum.
Both Marquette and U.W. law schools have numerous opportunities to gain practical experience through clinics and externships, supervised by practicing attorneys. But third-year curriculums are still rooted in traditional courses on legal theory.
Kearney noted that Marquette Law School now places much greater emphasis on practical skills, but largely defended legal theory education as the bedrock of lawyering.
“Lawyers, by and large, are not mere scriveners or clerks whose duties consist simply or even primarily of filling out forms or applying, in a semi-mechanical manner, established practices to the problems of the next person in the queue, outside the door,” Kearney said.
“Instead, they, you, are dealing with a substantial range of human experience and a diverse set of needs and many of the solutions or approaches that they can offer will require creativity, judgment, research, and good habits, of which a legal education including a substantial amount of theory can be especially conducive.”
“Part of it simply rests on the amount of law that one encounters in trying to sort through the implications of your client’s primary conduct, and the recognition that this law is knit together in ways that can only be described as theory,” Kearney continued.
For instance, Kearney suggested that all lawyers need a basic understanding of the corporate form, “whereby so much happens in our society, and wherein and whereby, from my crudest statement tonight, so much money can be found or protected.”
“Unless we are just going to throw out law, it turns out that one still has to persuade judges to rule in his or her client’s favor, and understanding the theoretical background of a body of law usually helps in that endeavor,” Kearney said.
Kearney, bolstering Raymond’s remarks, noted that the ABA will have a good deal more to do than Marquette Law School in determining the future direction of legal education.
ABA Recommendations in the Works
Last month, the ABA Task Force on the Future of Legal Education issued a draft report that offers recommendations on how to improve the legal education system. The report contains various recommendations for the ABA, law schools, and state bars.
Those include establishing ABA commissions to examine reforms regarding law school pricing and financing. The report also recommends a review of ABA standards to help reduce the cost of delivering law degrees, including a review of faculty tenure rules.
Law schools should develop plans to reduce the cost of delivering a J.D. degree and limit increases in tuition, the report states, and universities should develop programs to train persons other than prospective lawyers to provide limited legal services.
The draft report also recommends that state bars, supreme courts, and state lawyer regulators should “construct and evaluate proposals to reduce the amount of law study required for persons to be eligible to sit for a bar exam or be admitted to practice.”
In addition, there’s a recommendation for states to authorize persons other than lawyers with J.D’s to provide limited legal services. The state of Washington already does this.
The Evergreen State is expected to begin licensing so-called “limited license legal technicians” in the fall of 2014, starting with licenses for family law matters.