Reducing Law School to Two Years?

Some people have argued that law school should be reduced from three years to two; President Obama has really endorsed this view. Such a reduction, the theory goes, will substantially reduce costs (whether those costs are paid by students, parents, or taxpayers) — the student won’t have to pay for a year’s education, and will be able to get paid for actually working as a lawyer (even if such recent graduates end up being paid less as a result).

I agree that inefficiency in the educational system is a serious problem, and I think some radical solutions might be called for. But even trying as best I can to set aside my obvious self-interest as a law professor, I think that generally cutting law school to two years is not likely to be helpful, simply because there are so many important subjects that most would-be lawyers need to cover. And I’m talking here about serious, meaty, practically useful subjects, not just classes taken out of intellectual curiosity. (I’m all for satisfying intellectual curiosity, but I take the argument to be that law school classes are a very expensive way of doing that, and I will accept that argument for purposes of this post.)

Let me start with the first year of law school. At UCLA, it consists of (1) contracts, (2) torts, (3) criminal law, (4) civil procedure, (5) property, (6) constitutional law, and (7) legal writing. My sense is that for most lawyers, these are important subjects to know; they certainly are substantive, and they have implications in many areas. Even would-be business lawyers ought to know the basics of criminal law, such as mens rea, the law of conspiracy, attempt, and complicity, and so on. One might remove one of these classes (maybe constitutional law), but I don’t think there’s a lot of fat here.

Now let’s turn to the second and third years, with a typical schedule being, on average, nine classes per year. If someone came to me and said, “I want to be a litigator, dealing mostly with general business matters, whether at a firm or in-house; what are the basic classes I ought to take, so I have a fundamental grounding in the kinds of topics that I’m likely to run across?,” here’s what I’d say:

1. Evidence, which is important even for lawyers who rarely see trial.
2. Federal Income Tax I, since tax issues are ubiquitous even if you’re not a practicing tax lawyer.
3. Business Associations, which covers the law of corporations, limited-liability companies, partnerships, and the like.
4. Business Torts, which covers torts such as fraud, interference with business relations, unfair competition, and the like, which generally aren’t covered in first-year Torts.
5. Remedies, which covers the law of injunctions, restitution, and the like.
6. Professional Responsibility, which deals with often quite technical ethical obligations of lawyers.
7. Conflict of Laws, which routinely arises in questions involving occurrences or transactions in which the events or the parties are in different states.
8. Administrative Law, which deals with administrative agencies, and which is relevant whenever clients have to deal either with federal agencies or state and local agencies.
9. Intellectual Property, a survey class that covers copyrights, patents, and trademarks — some of the most important assets in the modern economy — and which is relevant even if one won’t be a full-time I/P lawyer.
10. At least one class dealing with employment law, such as a general Employment Law Survey.
11. At least one advanced writing class, such as an independent research project for writing a law review note, or a seminar in which a lawyer can train his writing skills.
12. At least one class dealing with transnational law, such as International Business Transactions.

So already we’re at more than two years’ worth of classes, and we haven’t discussed the other substantive classes that one might want to take either to get a sense of what one might want to specialize in, or to better understand the specialty that one has chosen — for instance, (1) First Amendment law, media law, or federal communications law, (2) business bankruptcy law, (3) advanced tax, whether the corporate income tax or state and local tax, (4) mergers and acquisitions, (5) securities regulation, (6) secured transactions, (7) land use or state and local government law, (8) environmental law (a subject that many businesses obviously find very important), (9) antitrust law, (10) more intellectual property classes, and (11) more transnational business law classes. And even that doesn’t include still more specific classes, or for that matter any clinical classes (except the one required legal writing class plus the one extra legal writing class that I think everyone ought to take).

Even if one removes some items from the strong suggestions list (such as, perhaps, professional responsibility, or employment law), and removes several items from the other options list (such as antitrust law, mergers and acquisitions, and land use), all this still adds up to lots of substantive, important classes for would-be business lawyers ought to take — again, especially if one adds to this the clinical training that law schools are rightly being encouraged to provide. Two years doesn’t, I think, give a law student enough time to get really well-trained in the subjects that the modern complex legal environment involves. And, I stress again, none of the classes I mention above are “law and” classes (including classes that have eminently serious academic credentials, such as legal history or law and economics), or even are substantive classes that fall outside the business law core (such as criminal procedure, immigration law, family law, or wills and trusts).

It’s possible that the answer might be different as to people who know they want to specialize in fields other than business law generally. For instance, I think it might be possible to craft a 2-year or even a 1½-year curriculum for students who want to specialize in criminal law, whether as prosecutors or criminal defense lawyers. (One might also then offer a supplemental program for people who have gotten this degree, practiced criminal law for several years, and then want to switch to business law.) Likewise, one might be able to craft a shorter program for people who know they want to specialize solely in tax law, patent law, family law, or some such. But if we’re talking about someone who wants to go into general business litigation, and maintain some flexibility within that field, I think it’s hard to compress that into two years without losing a lot of very important material.

UPDATE: I should note that this is a separate question from whether one should be able to take the bar exam without having gone to law school, or whether one should be free to practice law without having taken the bar exam or having gone to law school. I’m inclined to say that, whatever might be the arguments for such licensing as a means of protecting relatively unsophisticated individual litigants (and especially criminal defendants who are appointed a lawyer), it’s hard to see why larger businesses need such protection. If a large company is willing to hire lawyers who have learned law in unusual ways, or hire law firms who hire such lawyers, I think they ought to be free to do so.

This would often involve companies or firms hiring people who have top-notch legal training but who haven’t been licensed in this particular state. It might also involve proven lawyers from other countries who haven’t formally studied American law but who, in the judgment of their employers and clients, are knowledgeable enough about the corner of American law that they are being asked to practice. But in some situations it might even involve companies or firms taking a chance on someone whose experience or credentials they trust, but who is learning law through some alternative mechanism to law school, whether informal online learning, apprenticeship, or some such.

Still, these are separable questions from the two- vs. three-year issue, and I leave them to others (or perhaps to future posts).