The Third Year

April 1st, 2013 / By Deborah J. Merritt

Paul D. Carrington, Professor and former Dean of Duke Law School, has given us permission to post this thoughtful essay about the third year of law school. As a long-time member of the Texas bar, he responds to a recent “President’s Opinion” in the Texas Bar Journal:

In the March issue of the Texas Bar Journal, President Files expressed opposition to the proposal presently being advanced in New York to allow students to take that state’s bar exam and enter practice after two years in law school. President Files mistakenly supposes that the third year is indispensable to professional competence.

Making law study a three-year deal was not an idea advanced as a means of improving the quality of legal services delivered to prospective clients. The three-year degree was fashioned at Harvard in 1870 to impress other citizens with the social status of those holding Harvard Law degrees. Many of the students at Harvard at that time looked at the curriculum and left without a degree. Who needs a year-long, six-credit course on Bills and Notes?

Harvard itself understood that great lawyering does not require prolonged formal education. It awarded an honorary Ph.D. to Thomas Cooley to celebrate his great career in the law. Cooley never took a single class in law school, or even in college. He had a year of elementary school and a year in a law office before he moved to Michigan at the age of nineteen and hung out his shingle. He soon moved on to be the clerk to the Michigan Supreme Court, then to be its Chief Justice, then the founding dean of the University of Michigan Law School, then the author of the leading works in the nation on constitutional law and on torts, the president of the American Bar Association, and the designer and founding chair of the Interstate Commerce Commission regulating the nation’s railroads. It was possible for young Cooley to “read the law” and become perhaps the best lawyer in America.

It was still an option to read the law when I entered the profession in Texas in 1955. The applicant who scored the highest grade on the bar exam that I took that year had never attended law school. He had spent some years in a law office. And in three days he wrote coherent legal opinions on twenty-seven diverse problem cases. But he had not paid law school tuition. Had he chosen to attend the University of Texas Law School in 1952-1955, it would have cost him fifty dollars a year for tuition. I went to Harvard and paid six hundred dollars a year. That was enough to pay the modest salaries of the small band of law professors numerous enough to conduct big classes for three years.

In the 20th century, the organized bar first took up the cause of requiring three years of study. The motivating concern was not the competence of the lawyers providing legal services. The aim was to elevate, or at least protect, the status of the legal profession: if medical students were all required to stay for four years, lawyers seeking elevated status needed to stay for three. Benjamin Cardozo and Henry Stimson, two of the wisest and best 20th century lawyers, looked at what their third year schoolmates were doing, sneered at the waste of time, and went on to take the New York Bar Examination and become famous for their good professional judgment. Many and perhaps a majority of other early 20th century American lawyers attended two-year programs of law study in the numerous night schools.

The requirement of three years of formal study became common among the fifty states in the second half of the 20th century. But it is not universal. Thus, many California lawyers are graduates of two-year programs provided by the many night schools still functioning in that state. Reliance is placed on a very rigorous licensing examination to assure a reasonable measure of professional competence. There is no evidence that California lawyers are less competent or provide poorer professional service than Texas lawyers.

Requiring three years of formal study made more sense in 1963 than it does in 2013. The difference is the drastically elevated price of higher education and the resulting indebtedness borne by many students who aspire to be good lawyers. The price of all higher education in the United States increased mightily as a secondary consequence of the 1965 federal law guaranteeing the repayment of loans to students. In real dollars, taking account of inflation, the price of higher education is now about five times what it was when that law was enacted. The money is spent on elevated academic salaries, extended administrative services, and reduced ratios of students to teachers at all levels. “Higher” education keeps getting higher and higher in price.

As a result of this elevation of the real price of legal education, the requirement of three years is increasingly discriminatory. It is the offspring of working class families who often leave law school with substantial debts that they cannot repay from their earnings as rookie lawyers. For many, their prospective careers are ruined.

If the Texas Bar Association wishes to remain open to members who come from impecunious families, it, too, must face the reality that the third year of law school is unnecessary to assure the professional competence of its members. And also, if the Association wishes to assure impecunious clients of access to competent legal services, it needs to relax the requirement of prolonged formal education. I urge the Bar and the Supreme Court to address the issues promptly.