Reframing the Two-Year Debate

October 5th, 2013 / By Deborah J. Merritt

The debate continues over the virtues and drawbacks of a two-year JD. Much of the discussion has raised useful questions about the goals we try to achieve within the JD program. What purpose does the first year serve? How do the second and third years build on those objectives? How do students best learn the doctrine, policy, analytic skills, and problem-solving capacities they need to become effective lawyers? Can it be done in two years?

Most comments, however, have focused narrowly on the JD program itself. Few participants have addressed the skills that students learn (or could learn) in college; the ones they gather in the workplace before, during, and after law school; or the academic study they might complete after graduation in a world of MOOCs and other online instruction. If we want to provide the best possible legal education–an education that serves graduates, clients, and society–we need to think of law school as part of a much larger educational system.

A recent essay by my co-moderator, Kyle McEntee, begins to add that perspective. Kyle argues that a two-year JD is plausible if we expand the notion of legal education beyond the law school walls. Most professional and graduate programs require students to complete prerequisites in college. If law schools followed that lead, we could deliver more focused, sophisticated content from the first day of classes. Similarly, law schools might address the need for specialized doctrinal training by creating post-graduate on-line courses for practicing attorneys.

These suggestions carry significant force. Could we, in fact, construct a worthy two-year JD if we better integrated that degree with the education that precedes and follows it? That question deserves further examination. Rather than pursue it today, however, I’d like to use Kyle’s insights to reframe the discussion.

A New Frame

I suggest reframing our discussion of legal education by asking four fundamental questions: (1) What does law school currently teach? (2) Which members of our society would benefit from all or part of that education? (3) Does our society need new types of law-related education? (4) How can our educational system most efficiently and effectively address the educational needs identified in response to these three questions?

Exploring these questions could take legal education in many directions. We might identify new ways to address our nation’s need for cost-effective legal assistance. We might also contribute to better workforce preparation among non-lawyers. We might even find ways to enhance high school education. For today, I’ll outline just one proposal that has emerged from my own pursuit of these questions: Create an undergraduate major based on the first two years of law school.

Law as an Undergraduate Major

This major would not be a “pre-law” one; nor would it be law school lite. I propose literally transferring the first two years of law school to the undergraduate curriculum. Like our current 1L and 2L years, the major would include a large number of required courses along with some electives. Undergraduates could share some of the electives with post-BA law students, just as undergraduates in other fields share some electives with graduate students.

Undergraduate law majors would complete several writing projects, just as today’s law students do in the second and third years. They might complete a law-related internship during the summer between their junior and senior years, again following the practice of today’s 1Ls. To graduate with honors, law majors would write a publishable law review note–analogous to the senior thesis required for honors in other undergraduate fields.

This new LLB would not qualify graduates to take the bar exam or practice law. To obtain a license, LLB’s would have to complete additional work in classrooms and workplaces; I plan to examine that work in future posts. The LLB, however, would serve many purposes short of admitting students to law practice. The law major would educate students in the critical thinking and problem solving that we teach during the first two years of law school. The major would also introduce students to the basic principles of our legal system, and it would give them experience interpreting cases, statutes, and other legal materials.

Like other liberal arts degrees, the law major would accomplish four related functions: It would develop the type of critical thinking that prepares graduates for citizenship, it would lay an intellectual foundation for work in many fields, it would give students intermediate-level knowledge in a particular field, and it would prepare students for graduate study in that field.

This proposal follows quite naturally from the four questions I posed above.

The Four Questions

1. What do we teach in law schools? Among other matters, we teach critical thinking, problem solving, and the use of policies and precedents to address complex social issues. We also teach fundamental principles of the legal system (torts, contracts, criminal law, civil procedure, business associations, etc.) and the basics of legal writing. We teach students how to find and interpret judicial opinions, statutes, constitutions, regulations, and other legal materials. We teach them how to relate legal issues to principles of economics, critical theory, philosophy, social work, and other fields of study.

Notably, we do much of this work during the first two years of law school. We continue this education during the third year, but most students make significant progress toward these educational goals during the first two years. Even interdisciplinary perspectives arise frequently in basic courses; we no longer save these insights for advanced seminars.

Law schools teach other material as well. We provide at least some education in client counseling, negotiation, drafting, and clinical representation. We expand upon the doctrinal and interdisciplinary insights of the first two years. We also offer a wide range of courses in advanced legal doctrine. These, like the subjects noted above, are essential parts of lawyer preparation. I omit them from further discussion here, because my current focus rests on the first two years of law school.

2. Who benefits from the education that occurs during the first two years of law school? Future lawyers undoubtedly do, and I would not eliminate any of these elements from legal education. But other citizens and workers would also benefit from this education. We have always recognized that fact in law school, noting the benefits of our degree program for business people, government officials, nonprofit leaders, and citizens of all types.

3. Does our society need new types of law-related education? Undoubtedly it does. Citizens lack representation in life-changing matters, including criminal prosecutions and child custody disputes. We need either to educate citizens to represent themselves or to educate more lawyers who will assist them. Regulation, meanwhile, is so ubiquitous that workers in many fields regularly address legal issues. Businesses can’t afford to hire lawyers for all of these matters; we need to educate other professionals to handle many of them.

If we consider critical thinking, creative problem solving, and clear writing as “law-related” skills, then our society needs even more types of law-related education. These skills are fundamental to today’s workplace; they appear at the top of most employer’s wish lists.

4. How can our educational system as a whole efficiently and effectively address these needs? Law school is effective in teaching 1L and 2L content to future lawyers, but it is not particularly efficient at the task. Students don’t encounter this material until they have attended (and paid for) four years of college; often, they also pay more per credit for this law school instruction than they do for college courses.

Why is this delay and extra expense necessary? Undergraduate majors in astrophysics, biochemistry, linguistics, comparative literature, neuroscience, and other fields master very complex material during their third and fourth years of college. They often receive that instruction in small classes taught by renowned scholars. Professors teaching in some of these fields could earn higher salaries in industry, just as some law professors could earn higher salaries in practice. If colleges can educate students in these fields, as part of the normal college program, why can’t we match that performance in law?

Future lawyers could learn the basics of critical thinking, legal reasoning, and legal doctrine in their last two years of college. They would still be able to devote at least half of their college credits to other fields, including subjects that would complement their legal education. Is it better to take introductory economics four years before studying Torts and Contracts, or just two years earlier? Wouldn’t it be beneficial to take economics and contracts from professors who are colleagues within the same college of arts and sciences? We could teach the first two years of law school just as effectively–perhaps even more effectively–in college as in law school. We certainly could reduce student costs by doing so.

Meanwhile, creating a rigorous law major would address some educational needs that go unmet today. Law schools have created one-year LLM’s for non-lawyers, but these programs are both expensive and unwieldy. The HR professional would benefit more from an undergraduate major in law than from a one-year master’s in the same subject. The latter costs more and delivers less. Compliance officers, similarly, would benefit from undergraduate legal education. So would some social workers, scientists, entrepreneurs, and software engineers.

It remains to be seen whether an undergraduate law major would help us meet the legal needs of low- and middle-income Americans, but it might. Creating an undergraduate law degree might spawn new ideas about educating professionals to meet these needs. At the very least, shortening the path to a law license would reduce costs for lawyers hoping to serve the under-served.

Conclusion

Legal education faces significant challenges, but so do colleges, workplaces, and the economy. We’ll reach the best solutions by thinking broadly. What do we teach? Who would benefit from that education? What other law-related education does our society need? How can we address all of those needs most effectively and efficiently?

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