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Beneventan Writing
December 17th, 2013 / By Deborah J. Merritt
My university library recently announced its acquisition of a rare piece of Beneventan writing. The acquisition is just a page fragment, literally a scrap of paper dating from the eleventh century. Why does this small piece of paper matter?
Ohio State has a Center for Epigraphical and Palaeographical Studies; our Classics Department supports courses and research projects related to medieval manuscripts. Because Beneventan script is so rare, faculty doing this work have relied upon digital images and photographs to study the writing. “[T]here’s nothing wrong with that,” Ohio State’s rare books curator acknowledged. “But it’s awfully nice to have a genuine example to show the students because you can see the grain of the parchment and the way the ink has skittered across the page because of the way the scribe has drawn his quill across it.”
As a scholar, this makes sense to me. I learn a lot from digital images and photographs, but original artifacts have special power. I don’t need to study everything in the original, but access to some originals greatly enhances study and teaching.
As I reflected on this, I realized that the same rationale supports clinical teaching in law, medicine, and other parts of the university. We can show students photographs of courtrooms; we can engage them in digital simulations; we can assign them thousands of appellate opinions. But if we want our students to understand law as deeply as a Classics scholar strives to understand Beneventan writing, then we need to let our students work with originals.
A real client, with a real problem, in a real world setting–that’s the the law school equivalent of the manuscript fragments in the library’s rare books collection. The rare books room and law school clinic seem to lie at opposite poles of the campus world. But at root, they share an essential attribute: they both enable deep learning through engagement with originals.
Postscript: For those who are curious about Beneventan script, the writing was used in Southern Italy between the eighth and thirteenth centuries. The Monastery of Monte Cassino, founded by St. Benedict, used this script; that enhanced the script’s importance in Benedictine writing.
Three Adaptations to Attract Applicants
December 3rd, 2013 / By Deborah J. Merritt
I wrote earlier this week about three forces that will continue to dampen law school applications, even if overall employment rates improve. Those forces are (1) the greater transparency of job outcomes, (2) the changed composition of those jobs, and (3) the narrowing of entry-level career choices. These trends may have little impact on the fortunes of a few top-ranked schools, but I think other law schools would be wise to consider them. Here are three suggestions for responding to these forces.
Stress Career Paths Rather than Options
Law schools have traditionally stressed the flexibility of a JD, noting the many career paths that follow from legal education. It is true that lawyers pursue many careers, but the immediate choices for individual graduates are relatively constrained in today’s market. Law students, moreover, have to specialize early in law school to compete for some of those positions.
Rather than fight these facts, we should capitalize on them. After working with millennial law students for several years, I’ve observed that they often ask for designated paths. They are less likely than last century’s students to seek open-ended options. Instead, they want to know how to get from “A” (the first day of law school) to “Z” (an entry-level job as a prosecutor).
Today’s applicants, I think, would respond well to specialized programs–as long as the programs offer demonstrated pay-offs in the job market. The next era of transparency may measure outcomes for particular programs. If a law school designs a program for future prosecutors and criminal defense lawyers, and if 90% of students completing the program secure one of those jobs, that will impress applicants. The same principle would hold for other areas of law practice or particular settings, like small firms.
Schools could easily create these paths with existing courses, clinics, externships, and extracurricular activities. The building blocks are there; we just need to switch our mindset from one that favors options to one that focuses on paths. We also have to be willing to articulate these paths and measure success rates. If we create successful paths with demonstrated results, and share that information honestly with prospective students, I think that applicants will respond.
If you’re tempted to resist specialization, consider this: Document review requires no specialized education–any law school graduate can do it. Don’t you want something better for your graduates?
Blend Education and Employment
Government agencies, mid-sized law firms, small firms, and businesses hire most of our graduates. These employers care about people skills, personal qualities, and hands-on experience. They want new employees who already possess those skills and experience; better yet, they like to hire graduates who have already worked for them as summer clerks, part-time employees, or externs.
It’s a buyer’s market, so there’s no point arguing with employers about these preferences. The preferences make sense from the employer’s perspective, and they carry pedagogic weight as well. Some of the best learning occurs when students can combine classroom and workplace experiences.
Law schools already encourage students to work during the summer, permit upper-level students to work part-time during the school year, and field an impressive number of externship programs. We can build on that base to create more dynamic programs that blend education and employment in more central ways.
In part, this requires a simple attitude shift. Rather than treating externships and part-time jobs as necessary evils that compete for classroom time, we should embrace these experiences as positive additions to our students’ learning. We should take those workplace demands into account when scheduling classes. We should also consider charging by the credit hour, rather than the semester, so that students can integrate classroom and workplace experiences year-round without paying extra for summer classes or a seventh semester.
Most important, our faculties should engage with the organizations that employ our students. What do our students do for those agencies, firms, or businesses? How does that work fit with their classroom experiences? Are there doctrinal principles or skills that the employers would really like to see taught on campus? Are there experiences they would be willing to offer that would complement classroom work?
Too often, we draw a line between campus and the workplace, announcing that we will teach up to the line while employers provide everything else. Why not negotiate the line? Or work together during the students’ three years to create the best overall learning experience?
Blended learning fits well with my first recommendation, the creation of professional paths. A student who wants to become a commercial real estate lawyer should not have to figure out the right assortment of classes, internships, and jobs; she should be able to rely on the cooperative discussion of professors and lawyers in the field.
Create an Undergraduate Major in Law
I’ve written before about the benefits of creating an undergraduate law major. In addition to those benefits, an undergraduate law major would allow legal education to retain the “option maximizer” aura that JD programs used to enjoy. BA’s with a law major could pursue the jobs open to other liberal arts graduates, as well as some of the “JD Advantage” jobs. These graduates could also, of course, choose to attend law school. A law major encompassing half of our current JD training wouldn’t allow graduates to “do anything,” but it would open numerous doors in the entry-level, post-college job market.
Under this framework, JD programs would offer two years of more advanced training. Those programs would lend themselves well to the specializations and blended classroom/workplace learning described above. Taken together, a BA+JD program would strike the right balance between options and specialization.
Support for Layered Legal Education
November 29th, 2013 / By Deborah J. Merritt
Since writing about multi-tiered legal education, including an undergraduate component, I have discovered several other scholars and practice experts with similar ideas. Here is a round up of proposals related to “layered” legal education with an undergraduate component. Please add to the collection by sending links to similar proposals.
Jordan Furlong’s BA plus MLP
Jordan Furlong, an internationally recognized expert on innovations in the legal market, proposed a BA/MA structure for legal education in 2010. As Jordan recognized, current JD programs do not effectively teach either professional skills or theoretical inquiry at the graduate level. Today’s law school offers a second bachelor’s degree masquerading as a professional or graduate degree.
Jordan, like me, proposes that we move much of the current JD program into the college curriculum: “Four years of undergraduate work would be enough to provide a healthy grounding in legal theory, legal history, aspects of justice, all the things that law schools now teach, in a mixture with Torts and Contracts and Business Associations and so forth.” Jordan also notes the positive impact of these courses for a wide range of students: “[A] a four-year Law undergrad would be a terrific grounding for any number of disciplines — don’t we always tell law students that a law degree opens up vast new career horizons to them? Better yet, students in other fields could minor in Law, or even take a handful of law electives. Think of the boost that would give to legal literacy among university graduates of all kinds, and to public legal education as a result.”
To prepare practicing lawyers, Jordan would establish “an MLP degree, a Masters of Legal Practice to mirror the Masters of Business Administration.” The master’s would build on the undergraduate degree, which would already have grounded students in “the theory and the basics.” The MLP would then “add business skills, professional responsibility training, client focus, project management, and the other hallmarks of a competent practitioner.” Sounds like a plan. (Jordan also notes the possibility of local bar associations creating training programs, perhaps jointly with private firms. That’s another excellent idea worth pursuing.)
Benjamin Barros’s Competency Exams
Benjamin Barros, Professor and Associate Dean for Faculty Research and Development at Widener Law School’s Harrisburg campus, has proposed a different mechanism for moving part of the JD curriculum to the undergraduate level. Rather than create a specific undergraduate major, Benjamin would allow prospective students to take competency exams in law school subjects. If a student achieved a sufficiently high score, the student would receive credit for the corresponding law school course.
As Benjamin notes, these exams would function much like Advanced Placement exams do at the college level. As with AP exams, Benjamin would allow students to develop their competency in any way they chose. Colleges, certainly, could offer courses preparing students for law competency exams; law schools might also enter that market. Students could also study on their own or use online courses. Test performance would offer feedback on the efficacy of these methods, while allowing students to choose methods suiting them best.
Benjamin, like Jordan and me, stresses multiple advantages of this system. Students could obtain a JD with less investment of time and money; a common path might include four years of college (including law-related courses) followed by two years of law school. Those law school years, meanwhile, could cover more sophisticated material. The nature of that more advanced material “might vary – it could be more practice oriented, more theory oriented, or remain doctrinal, but on a deeper level.” Whatever the content, JD students would obtain better preparation for their legal careers. College students would also benefit from law-related “AP” courses, even if they chose not to attend law school.
Benjamin first proposed a version of this idea in 2009. The original post, the more recent one, and the comments on both are well worth reading.
McGinnis and Mangas: BA Plus Apprenticeship
John O. McGinnis, a professor at Northwestern Law School, and Russell Mangas, a recent Northwestern grad practicing at Kirkland & Ellis, propose creating an undergraduate law degree that would include about 60 hours of legal study and 60 hours of general liberal arts courses. Like the other proposals discussed here, their approach would move traditional law school courses (including the first year) to the college curriculum.
McGinnis and Mangas would then require practicing lawyers to complete a year-long paid apprenticeship and pass the bar exam before qualifying for bar admission. Lawyers, therefore, could qualify for law practice after paying for just four years of education. They would devote a fifth year to qualifying, but receive income (rather than paying tuition) for that work.
McGinnis and Mangas, notably, would not eliminate current JD programs; they would maintain those programs alongside the new BA/apprenticeship track. Market choices by employers, clients, and students would determine the popularity of the two tracks.
McGinnis and Mangas, like others proposing layered legal education, note the financial advantages of their proposal. Students could qualify as lawyers with just five years of opportunity cost, four years of college tuition, and a paid apprenticeship. Even if apprenticeships paid low wages, new lawyers would carry much less debt than they do today–and might possess more professional skills.
Writing an article, rather than a blog post, McGinnis and Mangas develop the economic argument more fully. In particular, they contend that alternative educational paths would benefit consumers as well as new lawyers. A less expensive educational path should reduce the price of legal services; it might also enable services for markets that are currently underserved. The full McGinnis/Mangas article deserves a read.
The Kahn Plan
Douglas Kahn, of the University of Michigan Law School, advocates the boldest move toward the undergraduate curriculum. Kahn advocates moving the full three years of legal study to the undergraduate curriculum. Under his plan, students would begin law school after a freshman year of college. The law school curriculum would remain largely as it is today, but students would begin that study three years earlier.
Anticipating cries that his plan would sharply curtail liberal arts education, Kahn notes that law schools offer a good deal of that education within their three-year curricula. Most JD programs also allow students to take some courses from other disciplines, so students could assemble a well rounded education within the confines of a college degree that includes a JD.
Kahn does not advocate the addition of graduate education or apprenticeshps; he would allow students to qualify for the bar exam and law practice after just four years of higher education. His proposal thus moves more aggressively than any of the others discussed here, including my “four plus two” plan. Even if Kahn’s idea proves too radical for a consensus, he firmly supports the feasibility of beginning legal study during the college years.
A Plausible Path?
Each of these plans differs somewhat from the others, but all share a belief that we should begin legal education in college. Although constructing that path would require changes in state bar admission and ABA accreditation rules, these are changes well worth considering. I will continue to post on the practicalities, benefits, and costs of undergraduate “law school” courses and layered legal education.
Meanwhile, please forward links to other authors discussing these issues.
What Is a Liberal Education?
November 27th, 2013 / By Deborah J. Merritt
The Thanksgiving weekend is upon us. As you travel, feast, shop, give thanks, and draft exams, here are two questions to ponder:
1. What does a liberal education (also known by some as a “liberal arts” education) mean to you? See here for a distinction between the two phrases and a starter definition.
2. How does legal education fit within a liberal (or liberal arts) education?
Try these questions out on your friends and family members. Play Socrates with them and yourself: Don’t accept the first, most superficial, answers. Be concrete. See if people of different ages, genders, races, or social classes respond differently.
I welcome responses in the comments or by email (merritt52@gmail.com). I look forward to discussing those responses next week. Meanwhile, happy Thanksgiving!
What About the Bar Exam?
November 25th, 2013 / By Deborah J. Merritt
This post continues my earlier discussion of an educational framework that would shift the first 1-1/2 years of law school to the undergraduate curriculum. A two-year JD program, incorporating clinical education and advanced doctrinal work, would complement the undergraduate degree. As I wrote in my previous post, the undergraduate degree would not qualify students to practice law; as in our current system, only JDs would be eligible for bar admission.
In this framework, what would happen to the bar exam? The bar currently focuses on subjects covered during the first half of law school. If students completed that work in college, delaying the exam until after completion of a JD would be unsatisfactory. What’s the answer?
I can see several ways to address this issue, and I welcome suggestions from others. But here’s the answer that currently appeals to me: Divide the bar exam into two portions. The first portion would replace the LSAT as an entrance exam for JD programs. Rather than demonstrate their proficiency in logic games, future lawyers would show their competency in legal reasoning and basic legal doctrine. The second part of the exam, administered to JD’s, would focus on more advanced problem solving, counseling, and other practice skills. Both parts of the exam would include appropriate testing on professional responsibility.
A New Entry Exam
Law schools use the LSAT as an entry exam because we don’t have much else to rely upon. College grades offer one measure of potential success, but grading systems (and grade inflation) vary across colleges. Law schools set no prerequisites, so we can’t measure applicants’ success at mastering those fields. In theory, we could review applicants’ research and writing skills directly, but no one has much appetite for that. (And what would US News do to sell subscriptions if we abandoned a quantifiable admissions test?)
The MCAT, which informs medical school admissions, is quite different from the LSAT. The exam includes a section that probes reading comprehension and general reasoning, but two-thirds of the exam “tests for mastery of basic concepts in biology, general chemistry, organic chemistry, and physics.”
If students completed the first 1-1/2 years of legal study in college, we could devise a JD entrance exam that looked more like the MCAT. This exam would draw upon the current Multistate Bar Exam (MBE), Multistate Performance Test (MPT), and Multistate Professional Responsibility Exam (MPRE). A slimmed-down MBE would test basic knowledge and reasoning in foundational fields like Torts, Criminal Law, Property, and Constitutional Law. The MPT would examine analysis, reasoning, and writing as applied to basic legal issues. And an adapted version of the MPRE would cover basic principles of professional responsibility.
This type of exam would assure JD programs that applicants had mastered key principles during their undergraduate study. The exam would also demonstrate that proficiency to licensing bodies. Equally important, the exam could replace our obsession with LSAT scores. If we’re not willing to give up quantitative rankings and merit-based scholarships, we could at least reward new JD students for studying hard in college and mastering basic legal subjects.
Teaching to the Test
Would this new entrance exam require professors of undergraduate law courses to teach to the test? Would an undergraduate version of Property, for example, stress memorization rather than exploration of analysis and policy? That hasn’t happened in college science courses, despite the foreboding presence of the MCAT. Science professors, like law professors, realize that students can’t learn basic principles without also understanding how to apply them.
Undergraduate law courses, like our current 1L ones, would teach students basic doctrinal elements. They would also teach students how to apply those principles and reason with them. Students probably would reinforce their learning by taking review courses, just as they currently take LSAT prep courses and MCAT review ones. I’d rather see aspiring JD students pay for courses that review essential professional material than shell out money to learn tricks for beating the LSAT.
The entrance exam I envision, furthermore, would stress more basic principles than the current MBE. Currently, the MBE and MPT require 1-1/2 days of testing; the MPRE adds another 2 hours. I would create an entrance exam consuming six hours at most. The exam could cover all of the subjects currently included on the MBE (including Civil Procedure, scheduled to debut in February 2015), but coverage within each subject would be more limited. I would test only fundamental principles that students need to know by heart, not details that a reasonable lawyer would research. Similarly, I would include only some MPRE material on this exam, deferring other material to the post-JD test.
Post-JD Testing
So far I’ve proposed that aspiring lawyers would (a) complete a college major in law, encompassing the material we currently cover in the first 1-1/2 years of law school; (b) pass a modified version of the MBE-MPT-MPRE to enter law school; and (c) complete a 2-year JD program. Before gaining bar admission, these individuals would leap two more hurdles: They would (d) establish their good character, much as bar applicants do today, and (e) demonstrate their proficiency in legal analysis, reasoning, professional responsibility, and lawyering skills.
JD students would study some advanced doctrinal subjects in the 2-year program I envision, but I would not test those subjects for bar admission. Licensing focuses on minimum competency; we don’t test advanced doctrinal areas today, and we don’t need to add that testing to my proposed framework.
Instead, measures of post-JD proficiency could focus on legal analysis, reasoning, and professional responsibility–along with a healthy dose of lawyering skills. Adding a half year to legal study, as my four-plus-two program does, would allow better preparation in practice skills.
Licensing authorities could test those skills in one of two ways, or through a combination of the two. First, they could create their own tests of mastery. A written exam might include more sophisticated versions of the files used for the MPT. State supreme courts could also require students to complete live tests of client counseling, negotiation, and other skills. The medical profession has started using simulations to test graduates on their clinical skills; Step 2 CS of the licensing exam assesses performance through twelve simulated patient encounters. The legal profession could develop similar tests.
Alternatively, state supreme courts could require bar applicants to complete designated courses in these lawyering skills. Students would qualify for bar admission by successfully completing the required courses during their JD program. Courts and bar associations could assure quality in these courses by visiting and certifying them every few years.
Conclusion
It would be relatively easy to adapt the bar examination to a four-plus-two framework for legal education. Adaptation, in fact, could improve our licensing system by forcing us to reflect on the knowledge and skills that demonstrate basic competence in the legal profession. Step one of the bar, tested after college, would focus on basic legal doctrines, legal reasoning, analysis, and professional responsibility. Step two, assessed during or after the JD program, would further assess analytic skills while also examining key competencies for client representation.
Committing to Law
November 19th, 2013 / By Deborah J. Merritt
I have proposed dividing legal education into an undergraduate major (which would include the 1L year plus one semester of electives) complemented by a two-year JD (which would focus on advanced doctrinal courses and clinical work). One practical question about this proposal is: What happens to students who pursue a non-law major in college but later decide that they want to practice law? There are several answers to this important question.
Complex Professions Require Extended Education
First, we should be realistic about the education that professional work requires. Professionals in other complex fields begin their preparation as early as middle school. Future doctors and engineers, for example, push ahead in the secondary math/science curriculum. In college, they take courses required for their major (engineering) or admission to medical school. No one doubts that these fields require extensive education acquired over numerous years.
The same is true of most academic fields outside of law. Respected graduate programs in history, philosophy, and other fields do not admit applicants who lack undergraduate preparation in those subjects. Programs sometimes admit students who majored in a different field, but those applicants must demonstrate other coursework that prepared them for graduate work in the subject. In addition to field-specific coursework, many graduate programs in the humanities require language proficiency; those in the social sciences may require languages, quantitative skills, or relevant research experience. A college senior who majored in classics can’t suddenly decide to pursue a PhD in psychology; nor can the psychology major abruptly switch to doctoral work in classics.
Law is one of the few post-baccalaureate programs that admits students without specifying any prerequisites other than a BA. This in itself should suggest that our initial coursework is designed for undergraduate majors rather than college graduates. The first year and a half of law school is introductory legal education that could–and should–be completed in college.
At the same time, our degree structure leaves too little time to prepare graduates for the complex work that genuinely requires a law license. Document review is not complex; a college graduate with a law major could perform that work. Prosecuting crimes, representing criminal defendants, arranging international real estate deals, or helping healthcare clients restructure operations to comply with the latest healthcare regulations is complex. Entry-level lawyers need more preparation–primarily in people, business, and clinical skills–to begin work in these fields.
Creating a law major recognizes that law is a complex field–just like medicine, engineering, philosophy, history, psychology, and other professions.
Career Changers
But what about the engineer who wants to become a lawyer? Or the historian who fails to find a tenure-track position and hopes to pursue law as a fallback? Or the well meaning student who did well in college but couldn’t quite decide on a path? How would any of those graduates find their way into the legal profession if they failed to major in law as college students?
There are many potential roads for these students, just as routes exist for college graduates who lack necessary preparation for medicine, engineering, and other fields. Some career-changers enroll as post-graduate or continuing education students to complete undergraduate coursework needed for their new path. Some universities have created special programs for these students. Johns Hopkins, for example, offers a “post-baccalaureate premedical” program that allows college graduates to take the coursework they need for medical school.
Graduates who want to pursue a PhD unrelated to their college major, similarly, may complete a Master’s degree in the field before gaining admission to a doctoral program. Others may gain conditional admission to the doctoral program, promising to complete necessary undergraduate courses during their first year in the program. These students don’t receive credit toward the PhD for those preparatory courses, but they are able to enroll in the courses and complete them.
Law schools could adopt options like these to accommodate college graduates who decide to pursue a legal degree without completing the necessary college courses. Those graduates probably could complete the 45 credits of an undergraduate major in a post-BA program encompassing a full calendar year. Alternatively, they could complete the work in a part-time program stretching over two or more years. Law schools undoubtedly could devise a variety of programs to accommodate these students, just as we have created special LLM programs for increasingly diverse audiences. I wager that the new programs would be more popular than many of the current LLM programs for nonlawyers; the proposed programs would give students a solid grounding in law and qualify them to move on to the JD.
With the degree structure I propose, even a career changer could qualify for a law license after just 3-1/2 academic years: 1-1/2 years to replace the pre-law major and 2 years for the JD. If the student paid undergraduate tuition for the first part of that education, she might pay less than she would today for a 3-year JD.
The College Minor
Where there are majors, there are minors. A college minor in law would also answer some concerns about late bloomers and career changers. Students with a possible interest in law might complete 15-20 credits of college work to qualify for a law minor. Those courses would cover roughly the first semester of law school. In addition to offering excellent insights to students pursuing a variety of careers, this coursework would give late-deciders a boost if they later chose to pursue a JD. These students would need to make up only 25-30 credits of pre-JD legal study before beginning the 2-year JD. In other words, they would devote 3 post-baccalaureate years to obtaining a JD, just as students do today.
The Other Side of the Coin
Dividing legal education into a college major and a 2-year professional degree need not deter career changers from entering law. Equally important, the shift would give many more students an opportunity to explore legal education and decide whether that path is right for them.
Plenty of college students change their majors or convert an intended major into a minor. Some students who begin a law major in college will decide that they prefer philosophy, accounting, chemistry, or other fields. More power to them! It is better for these students to recognize their talents and preferences in college, rather than after investing in an expensive professional degree.
Conversely, college students with little knowledge of law practice may learn about law from their roommates and other friends. If law intrigues these students, they will have a low-cost opportunity to explore the field. Some will decide that law is not for them; others will decide to apply a law BA to a business or compliance career; still others will pursue a JD and practice law.
Summer work and internships during college will help these students decide whether law is the right career for them. Today’s colleges offer many opportunities for this work. A college student who has combined legal coursework with an internship or summer job will have a better basis than today’s students do for deciding whether to pursue graduate legal study.
The BA in law, finally, creates an option that students may exercise at any time. Some law majors may proceed directly to law school. Others may opt for jobs unrelated to law. Still others will pursue positions in compliance, human relations, legal process work, and other law-related fields that do not require a law license. After experience in those fields, some graduates may continue that work, seeking opportunities for advancement within their chosen area. Others may decide to obtain a JD, becoming licensed lawyers. Still others may pursue a graduate degree in another field such as business, computer science, or health policy. Those graduates may determine that their foundational coursework in law, combined with graduate study in another field, gives them the best career prospects.
More Choices
The bottom line is that a law major, combined with a more focused JD program, will give students more choices rather than fewer ones. Creating those choices is consistent with our new economy, which requires flexibility and adaptation.
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.
Derek Bok on Legal Education
October 7th, 2013 / By Deborah J. Merritt
Derek Bok served as dean of Harvard Law School from 1968-1971, a time of great challenges in higher education. Bok then took on the Harvard presidency, leading that institution for twenty years (1971-1991) with a reprise as interim president in 2006-2007. Over the years, Bok has drawn upon these experiences–together with prolific research–to write several insightful books on higher education.
Bok’s most recent book, Higher Education in America, offers a thoughtful overview of the problems and opportunities that face higher education. Bok neither glorifies universities nor deplores them; he offers pragmatic insights on a wide range of issues. Law schools receive a full chapter of Bok’s attention, and it is a chapter well worth reading. Bok does not plow new ground; he borrows from other scholars of legal education and the profession. Given Bok’s extensive experience and reputation in higher education, however, it is worth noting the points that he stresses.
[All quotes in the following sections are from chapter 13 of Higher Education in America. Working from an e-reader, I can’t give more specific page citations.]
The Employment Challenge
Bok is blunt about “the most serious problem facing law schools today.” “The crux of their predicament,” Bok states, “is that they are currently graduating far more students per year than the annual number of new legal jobs that are predicted to materialize through 2018 as a result of retirements and new openings.” The shortfall is not new: Bok notes that the economy produced 275,000 job openings for lawyers between 2000 and 2010, while “400,000 students graduated from law school.” During the current decade, he suggests, the gap will be even larger.
Some of these graduates, Bok acknowledges, will not want to practice law. “But enough of them will, based on past experience, to leave many of them unable to find a legal position even after the current recession ends, let alone a job with a high enough salary to allow them to repay their educational loans.” The inevitable result, Bok writes, is the one we are witnessing: college students are responding to the “dismal job market” in law by “abandoning their plans to enter law school.”
Bok makes short work of pleas to help students by liberalizing loan repayment programs: “such measures merely shift the financial burden to taxpayers while doing nothing to curb tuitions or to deter students from incurring excessive debts in the mistaken belief that they will somehow succeed in finding one of the coveted highly paid positions in a large law firm.” He also criticizes the inter-school competition that has “inflated faculty salaries, increased tuitions unnecessarily, and massively shifted financial aid from need-based grants to merit scholarships.”
The latter trends, Bok notes, have affected higher education more broadly; he criticizes inflated tuition and the decline of need-based scholarships throughout the academy. Law schools, however, seem to have increased tuition and reduced need-based aid more than other academic units–and are now suffering from a particularly severe employment crunch.
Pedagogy
In matters of pedagogy, Bok suggests that law schools may have been victims of their own early success. “Among the major professional schools, they were the first to discard the traditional lecture for a more active form of learning.” The case and “Socratic” method proved remarkably effective at introducing students to legal principles and critical thinking.
That success, however, “may have contributed to the lack of attention paid to other ways to foster effective teaching and learning.” As a result, law faculties have fallen behind their colleagues in other fields–including the arts and sciences–in both learning theory and practice. Bok criticizes law professors for their “constant” and “tedious” use of the case/Socratic method; harmful neglect of students’ self esteem; lack of feedback; and failure to require collaborative work.
Law schools, according to Bok, also “lag behind other faculties . . . in attempting to measure the extent to which their students are acquiring the knowledge or the competencies they need to perform effectively as lawyers.” When law schools do study those outcomes, the results are discouraging: One recent study shows that students make relatively small improvements in their legal reasoning ability after the first year. Their class preparation also drops markedly after that year. These findings, according to Bok, raise warning signs for legal education.
Clinics
Bok stresses the role that clinical education could play in improving legal education. In addition to adding necessary elements to the curriculum, clinical experiences could stimulate students’ flagging interest in the second and third years of law school. Bok also notes that clinical professors have led the way in stimulating innovative teaching at law schools. Those professors have pioneered a wide range of teaching methods and, along with professors of legal writing, have produced articles “discussing cognitive theory, . . . research on student learning, and their potential application to law teaching.”
As Bok concedes, clinicians don’t have it easy in the legal academy: “The principal impediment to achieving the full potential of clinical studies is the skepticism on the part of many members of the core faculty as to whether the training itself or those who provide it fully meet appropriate academic and intellectual standards.” Although Bok spent his faculty years as a doctrinal professor, he urges law school colleagues to shed this prejudice. “On balance,” he concludes, “the potential of clinical programs and their faculty to enrich legal education seems to justify a larger role than they are currently given in most law schools.”
And More
For further insights into legal education, I recommend the full book. Bok discusses the lack of legal services for low- and mid-income Americans, the difficulty of teaching professional ethics, and other key issues for legal educators. His exploration of other academic units is equally worthwhile. Bok’s views, based on a lifetime of experience and extensive scholarly study, deserve serious consideration.
Reframing the Two-Year Debate
October 5th, 2013 / By Deborah J. Merritt
The debate continues over the virtues and drawbacks of a two-year JD. Much of the discussion has raised useful questions about the goals we try to achieve within the JD program. What purpose does the first year serve? How do the second and third years build on those objectives? How do students best learn the doctrine, policy, analytic skills, and problem-solving capacities they need to become effective lawyers? Can it be done in two years?
Most comments, however, have focused narrowly on the JD program itself. Few participants have addressed the skills that students learn (or could learn) in college; the ones they gather in the workplace before, during, and after law school; or the academic study they might complete after graduation in a world of MOOCs and other online instruction. If we want to provide the best possible legal education–an education that serves graduates, clients, and society–we need to think of law school as part of a much larger educational system.
A recent essay by my co-moderator, Kyle McEntee, begins to add that perspective. Kyle argues that a two-year JD is plausible if we expand the notion of legal education beyond the law school walls. Most professional and graduate programs require students to complete prerequisites in college. If law schools followed that lead, we could deliver more focused, sophisticated content from the first day of classes. Similarly, law schools might address the need for specialized doctrinal training by creating post-graduate on-line courses for practicing attorneys.
These suggestions carry significant force. Could we, in fact, construct a worthy two-year JD if we better integrated that degree with the education that precedes and follows it? That question deserves further examination. Rather than pursue it today, however, I’d like to use Kyle’s insights to reframe the discussion.
A New Frame
I suggest reframing our discussion of legal education by asking four fundamental questions: (1) What does law school currently teach? (2) Which members of our society would benefit from all or part of that education? (3) Does our society need new types of law-related education? (4) How can our educational system most efficiently and effectively address the educational needs identified in response to these three questions?
Exploring these questions could take legal education in many directions. We might identify new ways to address our nation’s need for cost-effective legal assistance. We might also contribute to better workforce preparation among non-lawyers. We might even find ways to enhance high school education. For today, I’ll outline just one proposal that has emerged from my own pursuit of these questions: Create an undergraduate major based on the first two years of law school.
Law as an Undergraduate Major
This major would not be a “pre-law” one; nor would it be law school lite. I propose literally transferring the first two years of law school to the undergraduate curriculum. Like our current 1L and 2L years, the major would include a large number of required courses along with some electives. Undergraduates could share some of the electives with post-BA law students, just as undergraduates in other fields share some electives with graduate students.
Undergraduate law majors would complete several writing projects, just as today’s law students do in the second and third years. They might complete a law-related internship during the summer between their junior and senior years, again following the practice of today’s 1Ls. To graduate with honors, law majors would write a publishable law review note–analogous to the senior thesis required for honors in other undergraduate fields.
This new LLB would not qualify graduates to take the bar exam or practice law. To obtain a license, LLB’s would have to complete additional work in classrooms and workplaces; I plan to examine that work in future posts. The LLB, however, would serve many purposes short of admitting students to law practice. The law major would educate students in the critical thinking and problem solving that we teach during the first two years of law school. The major would also introduce students to the basic principles of our legal system, and it would give them experience interpreting cases, statutes, and other legal materials.
Like other liberal arts degrees, the law major would accomplish four related functions: It would develop the type of critical thinking that prepares graduates for citizenship, it would lay an intellectual foundation for work in many fields, it would give students intermediate-level knowledge in a particular field, and it would prepare students for graduate study in that field.
This proposal follows quite naturally from the four questions I posed above.
The Four Questions
1. What do we teach in law schools? Among other matters, we teach critical thinking, problem solving, and the use of policies and precedents to address complex social issues. We also teach fundamental principles of the legal system (torts, contracts, criminal law, civil procedure, business associations, etc.) and the basics of legal writing. We teach students how to find and interpret judicial opinions, statutes, constitutions, regulations, and other legal materials. We teach them how to relate legal issues to principles of economics, critical theory, philosophy, social work, and other fields of study.
Notably, we do much of this work during the first two years of law school. We continue this education during the third year, but most students make significant progress toward these educational goals during the first two years. Even interdisciplinary perspectives arise frequently in basic courses; we no longer save these insights for advanced seminars.
Law schools teach other material as well. We provide at least some education in client counseling, negotiation, drafting, and clinical representation. We expand upon the doctrinal and interdisciplinary insights of the first two years. We also offer a wide range of courses in advanced legal doctrine. These, like the subjects noted above, are essential parts of lawyer preparation. I omit them from further discussion here, because my current focus rests on the first two years of law school.
2. Who benefits from the education that occurs during the first two years of law school? Future lawyers undoubtedly do, and I would not eliminate any of these elements from legal education. But other citizens and workers would also benefit from this education. We have always recognized that fact in law school, noting the benefits of our degree program for business people, government officials, nonprofit leaders, and citizens of all types.
3. Does our society need new types of law-related education? Undoubtedly it does. Citizens lack representation in life-changing matters, including criminal prosecutions and child custody disputes. We need either to educate citizens to represent themselves or to educate more lawyers who will assist them. Regulation, meanwhile, is so ubiquitous that workers in many fields regularly address legal issues. Businesses can’t afford to hire lawyers for all of these matters; we need to educate other professionals to handle many of them.
If we consider critical thinking, creative problem solving, and clear writing as “law-related” skills, then our society needs even more types of law-related education. These skills are fundamental to today’s workplace; they appear at the top of most employer’s wish lists.
4. How can our educational system as a whole efficiently and effectively address these needs? Law school is effective in teaching 1L and 2L content to future lawyers, but it is not particularly efficient at the task. Students don’t encounter this material until they have attended (and paid for) four years of college; often, they also pay more per credit for this law school instruction than they do for college courses.
Why is this delay and extra expense necessary? Undergraduate majors in astrophysics, biochemistry, linguistics, comparative literature, neuroscience, and other fields master very complex material during their third and fourth years of college. They often receive that instruction in small classes taught by renowned scholars. Professors teaching in some of these fields could earn higher salaries in industry, just as some law professors could earn higher salaries in practice. If colleges can educate students in these fields, as part of the normal college program, why can’t we match that performance in law?
Future lawyers could learn the basics of critical thinking, legal reasoning, and legal doctrine in their last two years of college. They would still be able to devote at least half of their college credits to other fields, including subjects that would complement their legal education. Is it better to take introductory economics four years before studying Torts and Contracts, or just two years earlier? Wouldn’t it be beneficial to take economics and contracts from professors who are colleagues within the same college of arts and sciences? We could teach the first two years of law school just as effectively–perhaps even more effectively–in college as in law school. We certainly could reduce student costs by doing so.
Meanwhile, creating a rigorous law major would address some educational needs that go unmet today. Law schools have created one-year LLM’s for non-lawyers, but these programs are both expensive and unwieldy. The HR professional would benefit more from an undergraduate major in law than from a one-year master’s in the same subject. The latter costs more and delivers less. Compliance officers, similarly, would benefit from undergraduate legal education. So would some social workers, scientists, entrepreneurs, and software engineers.
It remains to be seen whether an undergraduate law major would help us meet the legal needs of low- and middle-income Americans, but it might. Creating an undergraduate law degree might spawn new ideas about educating professionals to meet these needs. At the very least, shortening the path to a law license would reduce costs for lawyers hoping to serve the under-served.
Conclusion
Legal education faces significant challenges, but so do colleges, workplaces, and the economy. We’ll reach the best solutions by thinking broadly. What do we teach? Who would benefit from that education? What other law-related education does our society need? How can we address all of those needs most effectively and efficiently?
Berkman Center Webcast on “Creating a Law School e-Curriculum”
June 27th, 2013 / By Kyle McEntee
The Berkman Center for Internet and Society at Harvard Law has a live webcast on July 9th at 12:30 pm eastern called “Creating a Law School e-Curriculum.” The speaker will be Oliver R. Goodenough, a fellow at The Berkman Center and a Professor of Law at the Vermont Law School.
Here’s the description:
Legal practice and legal education both face disruptive change. Much of how and what we do as lawyers and how and what we have taught as legal educators is under scrutiny. Legal technology is an important factor in driving these challenges. Law schools reform their curriculums law and technology is an area that is ripe for expansion in our teaching. It also provides ample room for scholarly examination. Creating opportunities for learning how technology is shaping legal practice should be a priority for any school looking to provide a useful education for the lawyers of the present, let alone the future.
To watch the webcast, simply visit this page at 12:30 pm eastern on July 9th. If you’re in Boston, the same page provides a form for you to RSVP to the luncheon.
About Law School Cafe
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Deborah J. Merritt
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