NYT Op-Ed Provides Mostly Irrelevant, Unsubstantiated Reasons for Two-Year Legal Education

Daniel B. Rodriguez and Samuel Estreicher, “Make Law Schools Earn a Third Year,” New York Times, January 17, 2013.

Right off the bat, Rodriguez and Estreicher mean well when praising New York’s discussion about reducing its legal education requirement from three years to two. Unlike others who’ve written op-eds for the Grey Lady in the past, I believe they are working in good faith, and make no mistake I’m fine with reducing the number of credits people need for law school.

…But I’m not fine with doing it for irrelevant or incorrect reasons because it doesn’t solve the underlying problems. For instance, the op-ed’s banner (the text in the tab at the top of your browser) reads:

Practicing Law Should Not Mean Living in Bankruptcy

Clearly the authors have never heard of Income-Based Repayment or Income-Contingent Repayment. These policies make it quite easy to practice law (or do anything else for that matter) if one has excessive student loan debt.

The piece, unfortunately, sprawls around, but here’s a list of claims as they appear:

(1)  Law school will be more accessible to low-income students

Law school is already over-accessible. People can finance their degrees plus living expenses with unlimited federal loan dollars. The problem is their low-incomes after they graduate (to the extent they’re not caused by the depression), their non-lawyer jobs (ditto), and the law school debt the government will write-off in twenty years.

(2)  Two-year legal ed. will help the next generation of law students avoid a heavy debt burden.

The solution to the problem must address the paramaters of the problem. Between 1999 and 2011, four of New York’s 13 private law schools joined the buy-two-get-one-free club because their tuitions grew by fifty percent in constant dollars. Another two probably crested the line this year, but I ain’t checking. Hacking off a year of law school (scholarship redistribution aside) only sets most of them back to the late 1990s. There’s no reason to believe it’ll halt future tuition increases because it doesn’t address their cause.

(3)  Legal education in the United States will improve.

Yay! I get to agree with someone! Y-A-Y!

Students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.

Yes, but less time in law school does not create jobs.

Myriad services are now being outsourced (often abroad) to nonlawyers, and the number of positions with large firms is dwindling, making it harder for graduating students — many of whom are saddled with six-figure student-loan debts — to find work at the outset of their careers that can even begin to pay off their obligations.

Such prospects are discouraging many young people from pursuing law degrees, and pushing away lower-income students the most.

I’ve never seen any evidence whatsoever that poor people are being “discouraged” from law school due to the fear of outsourcing and low pay. I suspect that it’s mostly wealthier people who have gotten the message and that the people enrolling today aren’t from the class that reads The New York Times.

Then again, I barely read The New York Times, except the international section, the addictive obits, and Krugman’s blog.

Law schools must do a better job of containing these costs. We also need more financial aid for students.

But the financial aid is already over-generous. That’s why law schools don’t feel the need to contain costs: So long as there’s a core of people willing to pay whatever absurd amount of money the marginal law school is willing to charge, nominal tuition will continue to increase.

As of today, there is no marginal law school because they’re still viable despite the applicant nosedive. That may change, but even if law schools close the first one left standing won’t slash its tuition, move into a smaller building, cancel its profs’ tenure, or force academics to teach full course loads.

While this wouldn’t increase the number of available jobs…

Yes, because less time in law school does not create jobs.

…A two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts.

But new grads have IBR and ICR. Their debts are not an issue (for the majority). The problem is that poor people are poor, not that lawyers’ debts are preventing them from charging $1.77 per hour.

Many law students can, with the appropriate course work, learn in the first two years of law school what they need to get started in their legal careers.

Most people who attend elite law schools can probably pass a bar exam with one year of self-study.

With this reform, law schools would have an obvious financial incentive to design creative curriculums that law students would want to pursue — a third-year program of advanced training that would allow those who wished it to become more effective litigators, specialize or better prepare for the real-world legal challenges that lie ahead.

Maybe, but creative curricula do not create jobs.

Those who graduate from rigorous three-year programs will not only emerge with sharper legal skills, but also be more essential to employers, raising the rate of job placement out of law school.

Sharper education will not create jobs. (Come on guys, you’re making me lose readers!)

A handful of states, including New York, allow individuals to take the bar after working for a law office for a number of years, in lieu of going to law school, though this approach is seldom used.

I’m glad Rodriguez and Estreicher brought this up because it raises a very important question: Why is this route seldom used? What does law school offer that law office preparation does not? What are the law students paying for? In theory (there is a theory behind mandatory legal education, right?), law school improves the likelihood of bar passage for those who might otherwise fail, but given the LSAT-bar passage correlation, it probably doesn’t. If people need some formal education to pass a bar exam, why not let the evil grubby free market provide it (without unlimited student loans)? Maybe people go to law school because they (rightly) think no decent-paying legal employer will hire them if they don’t buy the degree from a prestigious institution. If signaling value is all that law schools sell, then why do we need the ABA to regulate them, lend their students unlimited sums, and let them operate tax free?

Some will argue that the two-year option would only create unequal classes of lawyers and glut the marketplace with attorneys who don’t have the skills and training that generations of law school graduates before them have had.

We doubt this will occur. And in any case, the risk ought to be balanced with the varied needs of the American people for legal services.

Count me out of this “some,” for as I said at the beginning, a two-year law school is better than a three-year because it saves law students’ time and money, though it will throw recent grads under the bus by glutting the market even more (bet they can’t wait to send those employment data to U.S. News). I just think that legal educators need to come up with better reasons for why people should have to attend law school before becoming lawyers. I certainly don’t see how a two-year lawyer balances the needs of the American people. The beneficiaries are the students and taxpayers, but comprehensive reform would serve them better.

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Wait, I take it all back. These are flawless arguments. I’m willing to sell out for these irrelevant justifications for shortening law school because maybe in another 15 years when tuition grows by another fifty percent, some law professors will write another op-ed for the Times rationalizing one-year law schools.

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