September 9, 2013

The real problem with ending the 3d year of law school: What would happen to the clinics?

Instapundit asks "Should The Third Year Of Law School Be Cut?" which is a link to Paul Caron's excerpts from a set of NYT letters addressing the proposal that President Obama entertained recently.

But Caron's excerpts don't contain what I think would be the real sticking point for law schools. Let me do a different excerpt, with boldface added. From Georgetown lawprof Philip G. Shrag:
Small seminars to teach research and writing would vanish. Education in ethics would be threatened. Clinical education, which best prepares students for the real practice of law, is expensive because of its hands-on approach. It is taught mainly in the third year, and it might be the first to go.
After decades of building up clinical education in law schools, this 2-year approach looks like a devious plan to scrap them. But a second letter, from Hastings lawprof Marsha N. Cohen, makes it look completely different:
President Obama seems to have endorsed this week the lawyer training model being implemented by our new national nonprofit, Lawyers for America.... Fellows spend their third year at a legal nonprofit or government agency. After graduation and the bar exam, they return to the same workplace for a year, earning a fellowship stipend, the funds for which are provided by the agency, which benefits from low-cost fellows.

This program is not cost-free for law schools. Clinical education is far more costly to provide than classroom instruction. Without the supervision that clinical faculty provide, the practical training year could well be like many internships: young people providing cheap labor, without receiving significant instructional value in return.
In this vision, there really is a third year — off site — and the clinical teachers are more numerous and more important than ever. It's the teachers of seminars and specialized courses who are weeded from the faculty.

And how do you like everyone getting their start in "a legal nonprofit or government agency," where they spend 2 years working for nothing? The effort to cut law school back to 2 years ends up inflating it to 4!


Here's a flashback to 1982 — 6 years before Barack Obama became a Harvard law student. Harvard Law School — facing ''malaise'' and presser from "the school's self-described 'left,' which says the current curriculum buttresses the nation's political status quo" — issued a report that diminished the value of studying court opinions:
The Michelman committee... recommended expanded practical, or ''clinical,'' training for students, both as a teaching device and as an incentive for public service work.

Clinical training involves practice on real or simulated cases, such as work in a legal services clinic for the poor or through dramatizations before video cameras. At elite schools like Harvard, such ''practical'' training has historically been considered undignified, better left to the first years of practice.

''It is in the field under supervision, or in the life-sized simulation, that a student seemed likeliest to gain an enduring perception of the particular ways in which the conduct of lawyers may help make 'the law in action' a rather different thing from the 'law in the books,' '' the committee said....

One left-wing committee member, Duncan Kennedy, labeled the committee's findings ''homilies'' and charged in a written dissent that it failed to present ''a trenchant analysis of the educational problems of Harvard Law School and the program of reform designed to solve those problems.''

He proposed his own curriculum, including courses in case and rule ''manipulation,'' along with a mandatory two-month internship in a legal services office, and urged the school to discontinue its ''current policy of indoctrinating on the sly."...

''We are an academic institution, and it's not clear that clinical training is something we do well,'' said Prof. Charles Fried. E. Clinton Bamberger, a staff attorney at a legal services program sponsored jointly by Harvard and Boston University Law Schools, questioned the sincerity of Harvard's commitment to clinical education as legal aid. ''Harvard as an institution does not have the courage to make an explicit commitment to helping the disadvantaged through the law, because it is captured by the system,'' he said.
Think about the history and politics of these proposed changes.

What was Obama doing back when that report came out? Not community organizing. That lay ahead. He was in New York City, studying political science and international relations at Columbia University.


Carol said...

I loved my clinical and wish I'd taken more hours but it was pretty heavy. I was in court doing uncontested divorces before 3L, and won a contract case that went to trial in the fall. When I graduated I took their forms with me and hit the ground running.

What cracks me up is outsiders saying, law schools need to offer practical, real-world experience for students! when law schools have been turning somersaults trying to do this for 30 years now. Same goes for "clear nonlegalese writing" - totally hammered on all through school.

chuck said...

"And how do you like everyone getting their start in "a legal nonprofit or government agency,"

If that is followed by exile to a small South Atlantic island, sounds fine. Otherwise we will just have to put them up against the wall come the Revolution.

James Pawlak said...

After consideration of the overproduction of new lawyers and their drain on the economy and the "common good", it might be better to shut down all law schools for three years.

Irene said...

And what would happen to the law reviews in which academics publish?

Law reviews now depend on a two-year, tiered structure. Would 2Ls run the publications? Would 1Ls be admitted to a law review upon matriculation at a school?

Bruce Hayden said...

I think that they somewhat give away part of their game by suggesting that progressive indoctrination should be a mandatory part of the law school experience, in the form of getting their start in a "nonprofit" (like maybe the Clinton Foundation?) or with a government agency.

I do though think that some sort of practical experience is useful at some point in one's legal career, and those already committed to the dark side can do it with nonprofits or government agencies. Probably, not surprisingly, I chose a corporate internship with a computer company (since I had spent the previous decade and a half as a software engineer). In addition to time working at the company, we had writing assignments, where we practiced writing memos, revising contracts, and even gave a presentation. Somehow, with almost a decade of big company experience under my belt, I managed to get the top grade in the class and the corporate internship award. Stuff that seemed obvious to me after working in a big company, wasn't for many who came straight out of their undergraduate.

Nice thing for me was that the corporate internship took more work than my other 3L classes, which worked well because I didn't have to work nearly as hard in them as I had to in my 1L classes. Kept me busy and on-track, as contrasted to all the 3Ls who spend their last year drunk or stoned.

I think the thing to keep in mind though about proposals about giving up the 3L year is that that would make it harder to justify granting a doctorate degree. And losing the doctorate just isn't going to happen, not with the trend moving in the opposite direction, of more and more terminal degree programs granting doctorate degrees.

Pettifogger said...

Why would the internships just be in non-profits or government agencies? I recall that the senior partner of the firm I worked in during the 1980s thought that law graduates should be required to clerk for low wages for a couple of years after law school. Are we to assume the desire of non-profits and government agencies to get this low-cost labor is more virtuous that the motivations of the senior partner? I don't see the difference.

The Godfather said...

When I finished my stint as a summer law clerk in 1967, I really did feel that I was ready to start work as an associate at that large law firm. Nothing that I studied in the next 9 months persuaded me that I hadn't been ready, but that third year made me so. So I favor the idea of two-year law school.

But I reject completely the idea that as a trade-off for freeing law students from a third year of school they should be forced to work for some do-gooder organization or the government. This is just serfdom for the benefit of institutions favored by the left. If the objective really were to train them in useful legal skills, send them out to coal mining companies to practice OSHA law, or McDonald's to practice wage-and-hour law, or fracking companies to practice clean water law. If you want to learn to be a good lawyer, learn to represent the "bad guys".

Sunslut7 said...

Why not resurrect the use of a legal apprenticeship pathway. Combine it with a structured academic program involving high schools or prep schools plus a university. Students enter at age 16 and exit the program at age 25-26. When they leave school they possess actual work experience with a true legal firm. Job experience doing real legal work, wages and low debt balances, a college level education and real world legal experience. Of course they sacrifice the BS liberals 'filler course-ware' that makes them well rounded (<<<SNARKY FONT USED HERE). Ann I am referring to that useless liberal course that you are made to take so the institution can suck more cash from your wallet. Courses like A Survey of the World’s Religions, Art history, English literature and Medieval history. These courses will seldom be referenced in your legal career so why not jettison them and load up on real substantive course work in your intended profession.

Sayyid said...

Oh my. You'd have to do something crazy, like not require people who want to be corporate transactional lawyers to take Con law, crim law, civil procedure, and torts their 1L year, so that they could take courses that actually prepare them to move forward. Then they'd be ready for clinics by their 2L year instead of their 3L year, and you wouldn't be able to charge them anything for an unnecessary third year!

But then you wouldn't be requiring everyone to have the same first year of classes regardless of how irrelevant they are, so law firms would have to evaluate candidates on an individualized basis rather than ignoring everything but GPAs during 1L year.

Oh jeez, we're really descending into madness here, now.

The Genius Savant said...

I graduated in 2005 and have been litigating ever since. The third year is a complete waste of time, clinics included. It's a money grab by the professorate and an entry barrier for the profession, nothing more.

Law school teaches you to think like a lawyer, not to be one. The bar exam makes you prove it, even in areas of law you will never see again.

Being a lawyer -- PRACTICING LAW (litigation) -- is something one can only learn in the real field, not a climic.

Left Bank of the Charles said...

If the 2Ls and 3Ls were ready for the legal workforce, the law firms would be lining up with part-time jobs for them.

I didn't do any clinical work in my 2nd or 3rd year of law school. I did, however, help start the software company where I now work and which I joined full time after 5 years of law firm practice.

Those who feel the 2nd and 3rd year of law school could have been compressed into one year, probably wasted a good part of both years.

Theresa McAteer said...

My "clinical" in 1982-83 was to attend fewer classes and work more at the mid-sized firm where I'd clerked after 2L. I didn't graduate in the top 5% from USC, but I had a ton of excellent experience that put me in the courtroom the first day they'd let me in.

David said...

The clinic is the world. Everything else is an imperfect imitation, especially when conceived and administered in academia.

Douglas said...

"Being a lawyer -- PRACTICING LAW (litigation) -- is something one can only learn in the real field, not a climic." As a law professor who teaches both doctrinal (corporate law and finance) and practice classes (contract drafting), and having spent a few decades practicing law, I concur. Practice classes (and clinics) can help a bit, in particular, can help speed the transition from school to practice, but they can't make you a lawyer. Only practice, preferably with an experienced senior lawyer whom you can model, can do that.

One thing that law school does well, that firms don't do at all, is teach the big picture. Researching a narrow point of securities law for some brief will not give you an overall understanding of the structure of the securities laws and how they fit together, or give you some sense of where the law is heading and how you might be able to influence its direction for the benefit of a client. This role would surely be diminished if the third year were eliminated.

Biff said...

Aside from anti-competitive or rent-seeking reasons, I'm a little unclear on why a practical education in law in the United States typically requires seven years of higher education, while many other common law nations, e.g. the United Kingdom, seem to do well with undergraduate law degrees.

Regarding a different aspect, I think that the Godfather is onto something when he says, "This is just serfdom for the benefit of institutions favored by the left. If the objective really were to train them in useful legal skills, send them out to coal mining companies to practice OSHA law, or McDonald's to practice wage-and-hour law, or fracking companies to practice clean water law." I approached a law school clinic about a possible project for a charity with a sympathetic, real world constituency, but I was told that the charity didn't fit the clinic's client profile. When I asked about the profile, they wouldn't come out and say "left wing politics," but every recent client had a hard left "social justice" agenda.

PS. I was amused by the Harvard professor's remark in the 1982 article: "We are an academic institution, and it's not clear that clinical training is something we do well." I wonder how his colleagues at Harvard Medical School and the Harvard School of Engineering and Applied Science felt about that comment.

Real American said...

3rd year of lawschool is a complete waste of time. If you want to streamline law school, get rid of all the electives and just teach the bar courses and a 2-year legal writing course. California (for example) has 14 bar subjects and one is remedies, so that doesn't really count. Wills & trusts are considered 2 subjects but can be taught together. Teach Crim, Contract, Torts, Property and Civ pro the first year. Teach the other subjects the 2nd year. That's 13 total courses over 2 years.

Then, take the bar exam and go get a job. You'll save all sorts of money not borrowed and time wasted on useless classes. If you want to learn how the world works, get out in the world.

Also, not everyone wants to spend time helping indigents with cases that aren't worth the time of a real lawyer. If you do, that's great. Do it on your dime. People with different ambitions shouldn't be forced to waste an extra year at law school so you can feel good about yourself. these clinics are all about free labor, just like many PhD programs are about free labor. You're being taken advantage of and paying for the privilege!

The legal profession will adapt to the new types of lawyers this system produces the same way they always have. The cream will rise to the top and crud will stick at the bottom.