Editor’s note: President Barack Obama last month stoked the fires on a smoldering debate over whether three years of law school is too much when he weighed in on “two is enough,” side. The full transcript of his remarks at a town hall at Binghamton University can be found online at http://tinyurl.com/mwgn44j.
Minnesota Lawyer asked local law schools to weigh in on the issue. The University of Minnesota Law School’s response ran last week. Here is William Mitchell College of Law’s response:
By Eric S. Janus
President Obama late last month made an off-the-cuff suggestion: shorten law school from three years to two. The President’s reasoning seems grounded on the old aphorism that the first year of law school scares students to death, the second works them to death, and the third bores them to death.
The proposal to eliminate the third year of law school brings to mind another time-worn aphorism, the one concerning the care to be utilized in the proper disposal of the baby’s bathwater. Consider that the President’s comments are likely inspired by two critiques of legal education.
The first is that it costs too much in view of the likely return. The second critique is the long-standing complaint that law schools do not train their graduates effectively to be lawyers. (David Segal, What They Don’t Teach Law Students: Lawyering, New York Times, Nov. 19, 2011.) In short: too much theory, not enough practical wisdom. Here’s the problem with the two-year proposal: while it very well might reduce tuition, it would not address the preparation critique. It would simply advance on-the-job training by a year—meaning inadequately prepared lawyers meet their clients that much sooner.
Even so, if Obama’s major premise were universally true (the scare/work/bore theory), cutting off the boring third year and saving a year’s worth of tuition might still have some appeal. But many law schools, like William Mitchell, do offer curricula that address practical skills and professional values in a robust, intentional and effective way. Cutting off the last third of education in these law schools does not target boring, redundant or obscure theory. It shortens the opportunity for future lawyers to learn the skills and professional attributes that make the difference between effective and ineffective lawyering.
Law is an expert practice. Malcolm Gladwell, author of Outliers, cites the “10,000 hour rule.” Self-evident to practicing lawyers, the rule observes that people become experts in a complex field only after years of practice. Expertise is not simply knowledge. It is practical. Clients don’t pay lawyers simply to “think like a lawyer;” they pay lawyers to do like a lawyer, to draft like a lawyer, to argue like a lawyer, to negotiate like a lawyer, in short to act in the real world as an expert lawyer.
If Gladwell is correct, the necessary 10,000 hours of training must extend beyond formal schooling. So we must ask: how much of that training should be done in a school, and how much should be left to the vagaries of on-the-job experience?
Most law schools do a good job of teaching the fundamentals of legal doctrine and legal analysis. But some schools, like Mitchell, have for decades gone further by integrating the skills of lawyering with doctrine and analysis. We seek to help our students transform themselves into professionals, with a basic competence in the attributes and values that undergird the noble profession of law. Schools with this philosophy seek to accomplish these educational goals in an orderly, intentional and pedagogically sound sequence. We try to ascertain the outcomes that will add value to our profession and community, utilize current principles of effective adult education, and draw upon the practicing lawyers and judges in our community who are both great practitioners and great teachers. And, we hold ourselves accountable for the effectiveness of our educational program.
If we teach well, new lawyers will begin practice with a sound framework on which to earn the expertise necessary to provide valuable service to their clients and communities.
If, on the other hand, legal education mainly values the purely intellectual acquisition of knowledge and analytical thinking, I have no doubt that laws schools could accomplish this more limited task in two years. Of course, it would then fall to new law graduates to connect with a great mentor willing, and able, to teach them the practical wisdom needed to put this knowledge to work in the real world. If more than this is wanted or needed, three years of formal education is not an unreasonable time to devote to the project. But longer, more complex education costs money.
So, the real questions are, what level of competence does society need and expect from our lawyers? Who will pay to achieve that competence? And, how can we make competent legal services available broadly at a cost that is affordable?
As we answer these questions, let us remember that this is the 50th anniversary of important events in the struggle for equal rights and the rule of law. In 1963, Gideon v. Wainwright guaranteed legal representation in most criminal cases. The March on Washington and Dr. King’s Letter from the Birmingham Jail demonstrated that equality and justice don’t just happen. They are the result of real people, many of whom are lawyers, struggling in the real world.
Along with others, we at Mitchell have long understood that justice is a practice, and lawyers need practical wisdom, knowledge, skills and professional values, to help justice progress.
We can do more to make legal education more affordable and more effective. Perhaps, for some varieties of law practice, two years of formal schooling would be enough. (Washington State has recently adopted a program for limited-license legal technicians.)
But we should not make the mistake of thinking that the practice of law can be learned without guided practice and coaching. The last third of law school should not bore students to death. It should not be a time for “classes on curious or obscure topics.” It should be a capstone experience, professionally designed to help students transform themselves into skilled, ethical professionals with the scaffolding and foundation for a life of professional learning.
Eric Janus is president and dean at the William Mitchell College of Law, where he is also the Stephen B. and Lisa S. Bonner Distinguished Chair in Law