THE BLOG

Legal Education Crisis: Schools Need to Cut the Fluff

03/12/2013 06:07 pm ET | Updated May 12, 2013

The law school industry has devoted decades to convince prospective students and the public (including the taxpayer) that they are not merely professional trade schools but in fact intellectual centers of scholarship. But the fact is that very few of America's two hundred law schools can legitimately claim such status, and this scholarly pretension is a major contributor to the run-away cost of legal education. The customers are in revolt: potential students are balking at paying 150 to 200 thousand dollars for a law degree, and law firm clients are refusing to pay top-drawer hourly rates for newly minted lawyers to acquire on-the-job training. A closer look at the law school curriculum explains where many of the bloated and entirely avoidable expenses originate.

First of all, with a very, very few exceptions, "super secretary" would be better job description that "jurist" for the typical junior associate, even at the blue-chip, white shoe firms. (In fact, at such firms such associates are commonly known as FBUs -- fungible billing units.) Much of their workload consists of filling out various legal forms, researching routine legal issues, and conducting due diligence, tasks that which entail precious little of what they actually learned in law school.

The requisite first year law school curriculum covers a half dozen or so mandatory topics, including subjects such as civil procedure and property. The oft-repeated claim is that law school is designed to teach you to "think like a lawyer," and the first year curriculum does more or less achieve this aim. However, for most law graduate, the bar exam is the only time they will encounter questions related to most of their first year coursework.

Another old saw about law school is "the first year they scare you to death, the second year they work you to death, and the third year they bore you to death." A better description might be "the first year you master the archaic Law Against Perpetuities, the second year you take several courses that might actually relate to your future career, and the third year you have to enroll in enough additional but unnecessary coursework to get to the ABA-mandated 1120 hours of classroom instruction."

My alma mater exemplifies the problem. Georgetown University Law Center has a hundred or more course offerings of scant practical utility or (I would argue) intellectual value. Like the movies, and not sure you want to take the infamously difficult Corporate Tax II course? You can sign up for the Films and the Law Seminar and discuss the fascinating topic of legal themes in the films of Woody Allen. Don't have an Amazon account and the self-directed initiative to read recent books on the Constitution? You can enroll in this course: Recent Books on the Constitution Seminar. Have more of a taste for the classics? Then sign up for Law and Literature Seminar, and you can read Billy Budd, if you somehow missed Melville in high school. And if you have begun to think that maybe law school is a bad investment, Problematic Economics of Legal Education and Its Broader Implications will perhaps confirm your suspicions and fears about your educational investment.

Another significant problem is the profusion of legal "scholarship," much of it even more dubious value. There are 661 law reviews which are edited by second- and third-year law students, almost none of whom have any prior editing, scholarly or legal experience. What do sitting judges think about the tens of thousands of articles they churn out annually? Well, according to Supreme Court Chief Justice John Roberts, "pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something." And it's not just that judges and practicing lawyers find most of this output totally useless, other academic scribblers themselves ignore most law review articles. In an extensive statistical study of 385,000 law review articles, a full 40 percent have never been cited in another journal, and almost 80 percent have never been cited more than ten times (and that is counting self-citations by their authors).

There just are not enough novel questions of law or insufficiently contemplated theories of jurisprudence to justify this flood of spilt ink. The result is that many if not most students on law reviews end up diverting immense amounts of precious time from actually studying law in order to do a substandard job editing poorly reasoned and badly written faux scholarship. At Georgetown, recent law review articles have addressed these weighty questions of jurisprudence: is it fair to call Justice Clarence Thomas an "Uncle Tom," is prosecution of teen-age "sexting" a form of "slut-shaming," and can laws be just without consulting "God's Will"? The purported objective of law reviews is to publish original scholarship, but far too many of their articles substitute ludicrous and unfounded legal or political theorizing for originality, and endless citations for scholarship.

In Europe and across the rest of the world, including other heirs to the common law system, studying law is a four year undergraduate degree. As far back as 1971, the ABA Carrington Report recommended a curriculum of three years of undergraduate studies plus two years of law school for students wishing to become licensed lawyers. Can we justify making aspiring lawyers spend seven years in ever more expensive institutions of higher learning to accomplish what their peers in the rest of the world manage in four?

Fluff courses and serving time on a law review may be an affordable luxury for those students who manage to land a highly paid job straight out of law school. But for the majority of them, it simply adds tens of thousands of dollars to already burdensome debt load. And these problems are endemic in lesser or greater degree from the bottom of the fourth tier of law schools to the top of the Ivy League.

Legal education in America is facing a severe crisis, and practitioners and students almost universally recognize that the third year of law school provides far too little benefit for its exorbitant price tag. At a minimum, a third year of additional coursework should be made optional, and law schools should let the market, e.g. law students and their prospective employers, decide if it is really worth incurring an additional fifty thousand dollars of debt.

Law reviews should also be subject to some market discipline. Law reviews depend upon the unpaid work of second- and third-year law students. Once deprived of this captive supply of free labor, many superfluous law reviews would naturally cease publication. And with fewer student-loan-fueled revenues, surviving law review would be compelled to justify their existence, through paid subscriptions and scholarly citations to their published articles.

By making the third year of law school optional, and letting many law reviews of academically dubious value discontinue their operations, America's law schools can begin to refocus on providing a legitimate and more affordable professional legal education which serves the needs of their students and the public.