Law School: Two Years or Three Years?

Back in August, President Obama remarked that law school should be two years instead of three, noting that such an approach would be more cost-effective for students.  This is hardly a new idea -- papers and books have been written on the subject, and anybody who has even considered the notion of going to law school has heard the old saying, "The first year scares you to death, the second year works you to death, and the third year bores you to death."

Bruce Ackerman recently responded to Obama's statement with an op-ed in the Washington Post and a follow up today at Balkinization.  Ackerman argues that two years will "lobotomize the profession" and lead to a class of lawyers who are unable to verify the testimony of experts due to sub-par training in "social science" and "statistics."  Ackerman makes this point in various ways.  Here's part of what he said in the Post:

The predictable outcome will be massive professional retreat. Increasingly, lawyers will become secondary figures who prepare the way for “experts” to present the crucial arguments before administrative agencies, courts and legislatures. Decision-makers with two-year law degrees will proceed to rubber-stamp the expert testimony that seems most impressive because they aren’t prepared to test it in a serious way.

In contrast, if law schools redeem the promise of a three-year curriculum, their graduates will have something valuable to contribute to the larger conversation. They will never rival experts in their command of statistics and social science, but so long as they understand the basics they will be in a position to integrate technical insights into a broader understanding of the fundamental values of the American legal tradition.

And here is the similar portion of his post at Balkinization:

America’s law schools must train their students in the use and abuse of statistics, economics, and other social sciences or face increasing irrelevance in the formulation and implementation of public policy. The challenge is to integrate these technocratic skills into an historically informed, and philosophically sophisticated, understanding of the legal tradition. Otherwise, the profession will be pushed to the sidelines in an increasingly technocratic age.

Such an education requires a full three years of study.  It is too easy to deflect this point by claiming that most lawyers will not require such training, since they will be engaged in more humdrum professional activities. First, consider that these skills will increasingly be required by city councilman and leaders of state and local agencies, not only lawyers engaged in high-powered practice in Washington or Wall Street.  Even more important, it is simply impossible to determine which law students will take on leadership roles in the next generation.  Many lawyers from “elite” law schools will turn out to be drones; many  from “second” or “third” tier places will turn out to be leaders.  A two year curriculum promises to lobomotize the profession by 2050.

I do not think that Ackerman has as strong of a case as he seems to claim, mainly because many law schools do not systematically teach or require classes in social science or statistics.  This should not be a surprise to anybody, as it is very much in vogue to disparage students' lack of understanding of important issues when it comes to criticizing law journals.  I have previously remarked on this phenomenon here.  Judge Richard Posner, James Lindgren, and Arthur Austin are some others in the legal academy who have claimed that students lack the competence to discern quality legal scholarship and review the accuracy of submitted papers.  (See footnote 1 of Natalie Cotton's comment on this issue for citations and summaries of this criticism).

As somebody interested in legal academia, I think that I will be best served by three years in law school.  My third year gives me the opportunity to attend more lecture courses so that I have a knowledge base in more areas of the law.  It also gives me the opportunity to write more.  I think that my reason for favoring the third year is fairly particular, however.  For students who were not summer associates in the summer after their second year, the third year of law school is typically devoted to finding jobs and taking easy classes or clinical courses.  For students who were summer associates, the third year of law school is typically devoted to taking easy classes or clinical courses.  As far as required classes are concerned, many law schools only go so far as to meet the ABA's requirements that students take an advanced writing course and a class in professional responsibility.  UCLA School of Law is an example -- it does not even require students to take a course in evidence law.

Do I think that a third year of law school helps students learn the basics of social science and statistics?  No, because most law schools do not encourage the study of these subjects in their curricula and many students do not take advantages of the opportunities when they do exist.  Do I think that a third year of law school will allow students to take courses where they systematically learn the doctrine in new areas of the law?  Yes.  Do I think that students use the third year of law school to take these courses?  Only sometimes.  Many students grow weary of lectures and turn to clinical courses for practical experience.  Moreover, with large law firms typically extending offers before the beginning of the third year of law school, there is no reason for these students to exert a great deal of effort in the third year.  Some students with offers do.  I am friends with several of them.  But I think that Ackerman is a little too optimistic in expecting students to use the third year of law school to become knowledgeable in statistics and social science.