Reforming Legal Education

There is a growing movement in the legal community that aims to change the way we train attorneys. This stems from a decline in the more-than-toxic “big law” culture, student-debt loads, a decline in demand for traditional legal services (while demand elsewhere has increased).

American Legal Training

You can read this fascinating 42-page “Brief History,” or you can read the following.

For a great deal of time, legal education in the United States was informal. You would work for an attorney, and once you met your State’s Bar requirements, then you could practice law yourself. There was no requirement to attend college, or be of a certain age. It was pretty much like any apprenticeship at the time.

Legal education became formalized during the late 1800s, when scholars were applying the scientific method to every area of study. The debate over whether the practice of law should be subject to the scientific method (Jurisprudence) is still being fought today. (Read this 137 page paper for more info, or if you cant sleep). By the 1920’s and 30’s, scholars had formalized legal education, and law schools took over the job of training lawyers. Back then, attorneys received Bachelor of Law degrees (Justice Breyer has an LLB). LLB’s were phased out by the 1970’s.

Since then, schooling of lawyers consisted of theory, and deep dives into the core curriculum. Practical training ceased to exist until fairly recently, when low-ranking law schools started to focus on on-the-job training rather than academics. As in the past, it was then up to the law practices to provide practical on-the-job training once lawyers were licensed.

Legal Training Today

Currently, American  law students must have an undergraduate degree, which normally takes 4-5 years to obtain. Law school for full time students then takes three years. The first 1.5 years of law school are focused on core curriculum, which consists of: torts, constitutional law, criminal law, contracts, property, civil procedure, and ethics. These core courses are subjects that every attorney should be familiar with, and are guaranteed to be on the bar exam.

For the last 1.5 years of law school, students have their choice of advanced courses that may or may not be tested on the bar, hone practice skills, or are nonsense classes for slackers (law and film). Of course, your core courses are not jurisdiction-specific. Your courses teach general principles that come from treatises, which were collections of court rulings that detailed differences in rulings on similar matters. IE, really boring stuff. 

Once you graduate, you are expected to enroll into a bar prep course for several weeks, and then sit for the bar Exam. Depending on which State you took the Bar in, your results will arrive some time between 6 weeks and several months. Your entire life will be in limbo from the moment you graduate until you get your Bar results. The stress that comes from the stigma of failing is incredibly intense (this is amplified at prestigious schools), and its not uncommon to hear about people who have committed suicide during the wait period or after receiving their results.

The State of Young Attorneys

Many law graduates today don’t know the basics of drafting certain types of documents, and tend to rely on paralegals and secretaries to do a lot of the work for them. In fact, there are many attorneys who have never actually written their briefs (to be fair, they probably dictated large portions of them). While this is changing, its at a slow pace, and is not a priority. If a school makes it a priority, you have to deal with the expertise of the professors, and most law professors exist because they couldn’t make it in practice. 

To make things worse, Many, if not most, newer attorneys do not have any depth of knowledge when it comes to the law, especially in their jurisdiction. Taking jurisdictional knowledge out of the equation, the difference in outcomes between an attorney who graduated 40 years ago versus today is the equivalent of a plumber versus an engineer.

Also lacking in legal education is the subject of jurisprudence. Most attorneys have no working knowledge of the various philosophical views on interpreting the law. Few have any knowledge of the Federalist/Anti-Federalist debates over the constitution. This is problematic, as most attorneys will accept any Supreme Court decision at face value, not realizing that significant Supreme Court decisions were later reversed for correct or incorrect reasons. (Many attorneys are not forward thinking with their litigation strategies, and have a prescriptive mentality – “the rule is the rule because its the rule”).

Legal Education Across the Pond

In the UK, and in at least several European nations, the legal profession is split into solicitors and barristers. Solicitors essentially write documents and provide advice, while barristers are qualified to argue before courts/tribunals. In the U.K., the degree to become a solicitor is an undergraduate degree. Becoming a barrister requires additional training and practical experience.

Efforts to Reform Legal Education

There are many ideas for reforming education out there. I support 1, 2, and 4.  I would support 3 so long as it was heavily regulated, and required practice at several firms in different areas of practice. 

  1. Eliminate the current Bar Exam system. Make legal training jurisdiction specific, and have graduates from local schools automatically be admitted into the Bar upon graduation. Wisconsin allows graduates of their law schools to practice law without sitting for the Bar. Unfortunately, they are the only state that does this. The major downside to this is it requires schools to be selective with their admissions, and requires them to fail students.
  2. Have hybrid undergraduate/JD programs to reduce the number of years one must be in school. Several States have implemented systems where you attend college for two years, and then go to law school. This reduces the time you are in school from 7+ years to five years. A downside to spending less time in school is the lack of maturity of a young practitioner, and the fact that many clients may not take a young attorney seriously.
  3. Allow people to study under an attorney, and then sit for the Bar without attending law school at all. I believe only California still allows this (I know of one person who went this route just to be “that guy”). A major downside to this type of training is the lack of balance in the supervisory attorney’s practice. Many attorneys tend to do 1 thing: family law, med-mal, defense (civil or criminal), plaintiff’s attorney, etc.
  4. Shortening law school, and/or reducing the credit or course requirements. This is actually a problem. Some have argued for a 2-year JD program. They do this based on current course lengths, which have been condensed over time. I would make torts, property, criminal law, constitutional law, contracts, and civil procedure at least year length courses.
  5. Combine ideas 1 and 2, and create two levels of practice, like they do in the Old World. The truth is, most attorneys will never argue in a court room. Although Court dockets may seem busy, the percentage of conflicts that end up going to Court, let alone trial, is pretty low.

Re-Imagining Legal Education

Posted in LAW

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