Fixing The Lawyer Surplus By Ditching 3L

Earlier this week the New York Times’ Economix blog had a post called, “The Lawyer Surplus, State by State” about the (already widely-known-and-discussed) oversupply of recent law school graduates and newly-minted lawyers who just passed the bar exam.

A quick aside: the Economix blog’s subtitle — “Explaining the Science of Everyday Life” — is, in my humble opinion, misleading. As a basic matter, economics does not use the scientific method to test hypotheses under controlled conditions and is therefore not truly a “science.” It’s statistical and sociological, but not scientific. (For more, see this article or, for a contrary view, this article.)

Moving on to the blog chatter, Larry Ribstein notes the numbers are unreliable and overly simplistic, and ties it to his forthcoming law review article on making law school more practical. Brian Tamanaha’s pessimistic view about the fortunes of law schools going forward, while Stephen Bainbridge blames the government, implicitly (and ironically) suggesting the government step in to close profitable law schools down. Nathaniel Burney and John Day wonder about the professional responsibility and legal malpractice implications of literally tens of thousands of unemployable lawyers hanging out their shingles and taking on clients they’re not equipped to handle.

There’s of course nuance and variety, but there’s really only two sides you can take on an oversupply of lawyers. At Public Citizen, Brian Wolfman asks:

In any event, if there is a substantial surplus, that’s bad news for law graduates saddled with large debts who cannot find jobs. But it may be good news for consumers who should be able to hire lawyers at lower prices. Are legal fees declining?

At Above The Law, Elie Mystal suggests:

[I]f we’re producing twice as many lawyers than we need, is it time to close half of the law schools?

I know, every time somebody says that, students at non-elite law schools get their feelings all hurt. So how about this: let’s just close all the law schools ranked with an even number by U.S. News. Yale stays, HLS goes, Stanford stays, Columbia goes. I would be fine with that.

Why? Because we have twice as many lawyers as we need, and prospective individual students are too damn stupid to do the math. We are getting to a point where at law school orientations, law school deans should say: “Look to the left, look to the right, you and one of the people you just looked at are freaking idiots.”

Elie’s sentiment is probably the more common one among lawyers. Too many lawyers generally doesn’t translate into lower hourly rates, it translates into more lawyers forced into non-legal (or legal, but dead-end) work to pay off their debt. Lawyers tend to put blame on the law schools — which are, by and large, immensely profitable, which is why universities like them and why there’s so many of them — for suckering students with deceptive advertising that includes misleading employment figures into believing that a juris doctorate usually translates into an upper-middle class lifestyle.

One of the problems is quite simple: law school is too long and too expensive. Somewhere along the way, lawyers start telling themselves they were like doctors, highly-trained masters of technical fields.

We’re not. Doctors do two years of general medical education, two more years of general medical education mixed with introductory clinical experience, and then a minimum of three years in on-the-job specialized technical training in their residency, after which doctors remain within their specialized fields. In contrast, lawyers do three years of general legal education — the third year of which many believe is superfluous, including the legendary Justice Benjamin Cardozo, who ditched his third year in protest — and then go straight into generalized practice, with no particular training or certification required to practice in particular legal fields.

Which is why I mentioned my complaint about the Economix blog’s subtitle: lawyers are far closer to economics journalists than they are to scientific researchers. We have few technical skills; we are generalists in the humanities. Sure, we learn some new analytical skills in law school, but a lawyer is trained primarily through experience, not education, and succeeds by developing good judgment about human behavior, not through technical mastery.

Lawyers don’t need the debt in time and money of 3L. We can satisfy, to some extent, both Wolfman’s and Mystal’s concerns by getting rid of 3L, making law school significantly cheaper and less of an investment by the students. Law students will thus be able to take their degrees into less lucrative fields. It’s a lot easier to dedicate yourself to providing legal services to everyday people with two-figures of debt, instead of three. It’s similarly easier for graduates to devote another year or more to the low-paying apprenticeship and mentorship positions — from clerking for state courts to volunteering at legal clinics — they desperately need for their development and for the benefit of the public. Image the possibilities if we offered students the same loans they get for 3L now, but instead required the student find a mentor and work full time.

It’s not a complete solution, but it’s better than what we’ve got. It will probably encourage more students to apply to law school, but that will also improve the overall pool of applicants. It will also minimize the damage to law students who don’t end up actually practicing law, and, perhaps most importantly, improve the options for experience and for service available to recent law graduates.

 

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  • http://twitter.com/associatesmind Associate’s Mind

    I wholeheartedly agree in regards to the superfluousness of the 3L year. Honestly, I think there should instead be a required residency program for new lawyers. Something akin to the articling system in place in commonwealth countries (http://en.wikipedia.org/wiki/Articled_clerk). This would result in less debt for law students and produce new lawyers much better prepared for real world practice.

  • http://twitter.com/addisonattorney Bruce Belenky

    I like the first idea: close half the law schools. Then, add a year of on-the-job specialized training, which law schools would have to GUARANTEE for EACH student. Last thing this country needs is more lawyers.

  • John Day

    Any lawyer who wants to sign a pleading or appear in court should be required to participate in a two-year residency program. The resident would receive modest pay but would learn how to be a trial lawyer – not just “how to do an opening statement” but more important things such as client evaluation, case selection, writing for trial judges, arguing motions, etc. Those of us who have had the privilege of a great mentor had a de facto residency program and, I think, are better lawyers as a result. Show me a law student who was trained by a good lawyer and I show you someone likely to be a good lawyer. Show me a law student who tried to figure out the practice of law on his or her own and, more often than not, I will show you a mediocre lawyer (at best).