Optional Third Year

January 15th, 2013 / By Deborah J. Merritt

What if law students could take the bar exam after just two years of law school? That was the rule in New York until 1911: Franklin D. Roosevelt, Benjamin Cardozo, and many other eminent lawyers skipped the third year of law school after they passed the bar. This Friday, New York judges and legal educators will discuss whether to revive the “Roosevelt-Cardozo” option, allowing law students to qualify for the bar after their second year.

Samuel Estreicher, the Dwight D. Opperman Professor of Law at New York University, provoked interest in this option through a paper published last year. Estreicher argues that the option would (1) reduce the cost of gaining bar admission and (2) encourage law schools to develop more useful third-year courses that would keep students in school. Practitioners might also step up, creating apprenticeships targeted at students who had passed the bar after two years of law school.

What are the pros and cons of the Estreicher proposal? Here are a few thoughts, building on those shared by Sam and others who have commented publicly:

Advantages

1. As Estreicher argues, allowing students to gain bar admission after just two years of law school would reduce the costs of obtaining a law license. In addition to saving a year of tuition, students could find paying work to cover living expenses and begin repaying loans.

2. Many students complain about boredom during the third year; many professors notice a significant decline in student engagement. If students find little benefit in their third year, and are able to pass the bar exam without those classes, why not let them start practicing?

3. The bar exam is designed to measure minimum competence. If students can pass the exam after the second year, then they have demonstrated that competence. Conversely, the exam will keep out students who need more time to master legal basics.

4. Law schools have been slow to respond to changes in the marketplace. If the third year of law school becomes optional, schools will have strong market incentives to develop programs that deliver real value to third-year students.

5. Practitioners and bar associations may also attempt to develop programs attractive to students who have passed the bar exam after just two years of law school. Even if employers are reluctant to hire these students for full-time positions, they may accept them into apprenticeships that offer more value than the current third year of law school.

Disadvantages

1. New lawyers who have completed only two years of law school will be even less “practice ready” than lawyers with three years of JD training. In particular, students are less likely to complete clinics or supervised externships during just two years of law school.

2. Under current accreditation rules, students who leave law school after two years will not earn a JD (unless their school offers a special accelerated program). ABA Standard 304 requires students to complete 58,000 minutes of instruction to earn the JD. Students who have completed two years of law school instruction may become lawyers (if states allow that), but they will not be JDs.

3. Law practice is much more complex than in the days of Roosevelt or Brandeis. Two years of instruction might have sufficed to produce a lawyer in 1911, but can the same amount of education produce a competent lawyer today?

4. Employers may not be willing to hire lawyers with only two years of law school training and no JD. If students pursue this option and fail to obtain employment, they may waste the time and money invested in both their legal education and bar study. If these students ultimately return to law school, they will find the third year even more frustrating–and will also have wasted a semester or two in a fruitless job search (although they will have already secured bar admission).

5. If just one state adopts this course, it is not clear how other states will respond. Will other states allow lawyers without a JD to waive into their jurisdictions? If not, these “two year” lawyers will suffer further disadvantages.

What do you think? I’m particularly curious about how potential employers view this proposal. Would you hire a lawyer who had completed just two years of law school but passed the bar exam? Would it matter that the lawyer lacked a JD?