Four Plus Two

November 17th, 2013 / By Deborah J. Merritt

Practitioners and professors continue to explore new paths for legal education. Based on both pedagogy and market needs, I recommend this approach:

1. Move the first 1-1/2 years of law school into the undergraduate curriculum, creating a law major. Students who complete this curriculum will not be eligible to practice law, but they will benefit from a liberal arts education with a focus on thinking like a lawyer. These graduates will be able to apply their legal knowledge and critical thinking to business, public affairs, compliance, and a host of other careers. They will also be qualified to perform document review and other routine legal tasks that some JDs currently undertake.

2. Create a 2-year JD that builds upon the undergraduate degree and prepares graduates for law practice. Like other graduate departments, these programs will enroll fewer students than the undergraduate major. They will include substantial clinical and experiential work, as well as classes focused on advanced doctrinal and policy issues. Most students in these degree programs will focus on a particular field of law, although general practice will remain one of those options.

Here, briefly, are my rationales for this proposal. I hope to explore my reasoning at greater length in future posts.

Too Much Legal Education for Some

Our current JD curriculum offers too much education for many law-related workers. Compliance managers, human resource officers, and many other contemporary employees apply legal principles without ever attending law school. Most of these workers have only a bachelor’s degree. Some obtain certification from national organizations, and some earn a master’s degree in a field related to their compliance work. Very few, however, enroll in law school. Even one-year LLM programs have failed to attract a large number of these workers.

The hard truth is that these workers don’t need law school to learn how to interpret and apply legal principles. A strong liberal arts education–one that develops critical thinking and communication skills–is sufficient. These workers, in fact, often benefit from training in other fields such as finance, accounting, environmental science, chemistry, or biology. The “law” of environmental compliance is easier to understand than the biochemistry of that work.

The most sensible way for law schools to tap this flow of workers, which is growing steadily, is to enroll them in undergraduate programs. We shouldn’t, however, underestimate these students by teaching them dumbed-down versions of environmental law. Instead, offer future compliance managers our 1L curriculum–complete with development of critical thinking skills–followed by courses in environmental law, tax, securities, or other areas relevant to their interests.

Seven years of higher education is also too many for law graduates who perform document review and other routine legal tasks. Employers currently require a JD for this work, but that’s because they have no other option for workers with basic law skills. If we offered the first 1-1/2 years of law school as a college major, those classes would produce excellent document reviewers, contract managers, and other workers exercising routine legal skills. Once again, the undergraduate work that I envision would encompass all of the analytical skills we teach during the first year of law school, as well as the basic doctrine taught during that year.

Too Little Legal Education for Others

While our BA+JD system offers too much education for some law-related jobs, the combination offers too little for others. Most law graduates lack the specialized knowledge and clinical skills that employers now demand in new lawyers. As market forces have shifted routine legal work to non-lawyers, computers, and overseas workers, employers seek new lawyers who are ready to tackle more sophisticated tasks. The traditional JD curriculum does not serve those needs.

So far, law schools and employers have responded to this challenge by lengthening the training path for new lawyers. Some JDs are obtaining LLMs in specialized fields. Others are completing fellowships or low-paid apprenticeships to gather the experience they need for a full-fledged legal position.

A better answer would be to reduce the duplicate liberal arts education that these graduates receive in college and law school. Law school, for better or worse, adopts a liberal arts perspective. We educate students as generalists, not specialists. We stress critical reading, analysis, and writing, rather than narrow “technical” skills. We engage students in policy issues to prepare them for good citizenship and dynamic leadership. It’s hard to find a better “liberal arts education” than the first two years of law school.

Why, however, do we force future lawyers to take two doses of that liberal arts education, one in college and one in law school? Shouldn’t four years of a liberal arts education be enough? If students could major in law during college, they could develop critical thinking and communication skills in the context of legal materials. If they decided to become lawyers, they could then progress to a graduate program focused on more advanced doctrine, theory, and clinical practice.

If we moved the first 1-1/2 years of law school into the undergraduate curriculum, we could build a 2-year JD with more advanced offerings than we currently provide. Lawyers would devote only six years to higher education, but would emerge better educated than they are today.

Interdisciplinary Work

If college students are able to major in law, they will devote fewer college credits to history, political science, foreign languages, chemistry, and other subjects. The law major, however, would leave plenty of time for some study in those fields. Even if a law major consumed 45 credits (equivalent to 1-1/2 years of law school), that would leave 75 credits for other college courses–including general education classes and study in a minor field.

Students, moreover, would benefit from contemporaneous study of law and other subjects. Law students often struggle to apply college coursework to their law school classes. A freshman course in statistics seems very distant to a second-year law student; so does a sophomore class on economics or psychology. My proposal would allow students to combine legal study with work in other disciplines throughout a full six years of higher education. Integrating legal study with other work would foster more genuinely interdisciplinary understanding.

College and law graduates, finally, would have time to pursue other subjects if they chose to do so. My proposal would save lawyers a year of higher education. Students could use that time and tuition to complement their coursework with education in any other field.

Layered Law

For more than fifty years, lawyers have defended a unified profession and general degree. We have resisted efforts to create specialized law degrees or limited-purpose licenses. In part, we have feared the unappetizing specter of legal services divided along economic lines. Dividing the profession, we worried, might relegate low-income clients to cheaply trained lawyers–while corporations and the wealthy continued to benefit from better educated attorneys.

Note that my proposal does not slice law practice in that manner. I would not allow college graduates to represent either corporations or indigent defendants in court. Both of those tasks would require a law degree. Clients of all types, on the other hand, might benefit from some law-related work performed by college graduates.

The contemporary legal market has already generated several layers of law-related employment. Compliance managers interpret regulations with the benefit of only a college degree. Paralegals perform a wide variety of law-related tasks, sometimes with only an associate’s degree. Foreign-educated lawyers conduct document review and due diligence. Some JDs work in similarly limited positions.

Restructuring legal education would recognize these shifts, without compromising client interests. On the contrary, clients deserve the cost savings that have been achieved through the streamlining of legal services. At the same time, clients require the insights of highly educated lawyers. Expanding legal education to include both a rigorous college major and an advanced degree will serve all of those ends.