NYU Law is the latest school to revamp its 3L curriculum to address the clear problems with traditional legal education:

http://www.law.nyu.edu/news/NYU_LAW_ANNOUNCES_STUDY-ABROAD_PROGRAM_CURRICULAR_ENHANCEMENTS_THIRD_YEAR

While this is generally good news, the New York Times coverage of the announcement noted that a key premise is that the professional law degree needs to be a three year program. This was cited as due to both ABA requirements and the fact that “law schools are huge profit centers for universities”:

http://dealbook.nytimes.com/2012/10/16/n-y-u-law-plans-overhaul-of-students-third-year/?ref=business

These two facts are technically true, but quite problematic. I suggest that the three year standard is simply a vestige of the twentieth century decision to make the professional law degree a doctoral degree.

Take the latter fact first. It cannot be that we justify keeping students around for another year (and charging high tuition) because they are essentially cash cows. What kind of a horrible message and wrongheaded rationale is that? On the other hand, the former fact is derived from the ABA’s Standard 304 that prescribes 58,000 minutes minimum of instruction time (with 45,000 of those minutes spent in “regularly scheduled class sessions at the law school”). This was, in all likelihood, not motivated by the cash cow rationale. But neither was it likely generated by an independent, objective inquiry into how many credits are really needed to prepare a law student to become a lawyer.

Notice that the ABA Standard 304 is set in terms of minutes–not years–of instruction. The same Standard does reference minimum months as well, but that is set at 24 months. And this must be how Northwestern Law has put together its “two year” JD program. In fact, Northwestern makes no pretense that it is doing anything other than cramming three years of coursework into two calendar years (as it must to meet ABA Standard 304). This has some downsides for students in that the course load is high and year round, and, perhaps more importantly, precludes the opportunity to participate in law firm summer associate programs–which are traditionally one of the main ways that students get permanent jobs for after graduation.

Thus, the key ABA limit is the instruction minutes requirement. Are all of these minutes (translating into roughly 53 credit hours of instruction) necessary for a legal education?Outgoing Dean of Stanford Law School, Larry Kramer, is quoted in the NYT story above as saying “no.” According to him, “One of the well-known facts about law school is it never took three years to do what we are doing; it took maybe two years at most, maybe a year-and-a-half.”

NYU’s Dean and faculty seem to agree in that a major component of their 3L overhaul is to allow students to engage in year long externships or internships off campus that are primarily practice-oriented. If there was something critical about students being on campus and learning directly from law professors for three regular years of courses, then the NYU program would not work.

So what have we been doing with this superfluous third year? Apparently allowing students to loaf and/or take intellectually interesting but somewhat irrelevant courses (at least for the practice of law). In truth, many students will seize the opportunity to take relevant classes they could not fit in during the second year. Some may be changing their ideas about the practice they would like to engage in, and so the third year can allow them the chance to take courses they now know they need. This is all fine at some level, but hardly necessary such that we should require students to stay around.

Here is my take on what happened. When the push for the law degree as a professional doctoral degree took off–for prestige, credibility, and other reasons–U.S. universities were likely already on their way to the de facto minimum standard of three years of coursework (plus dissertation) for research doctoral degrees. Further, the M.D. appears to have long been a four year degree program. Only masters degree programs are less than three years. Therefore, to be approved as a doctoral program by their university, law schools would need to have at least a three year program. Note that the M.B.A. is only two years, but is only a masters degree, not a doctoral degree.

My guess is that the ABA simply picked up on this de facto standard and incorporated it into its own approval standards. So to say that the ABA requires three years is probably misleading. It was the drive to transform professional legal education into a doctoral degree program that led to this state of affairs. If the legal community decided that we don’t need a doctoral degree, then we could transform the professional law degree from a doctorate to a masters and reduce the number of years.

And the kicker is that we don’t even use the doctor title! (This seems to be a mix of custom and perhaps some state bar or state professional licensing restrictions.)

Note that I am not saying that legal education should be a one or two year proposition. I am a firm believer instead in one or two years of classroom education coupled with a rigorous residency or intern program similar to what medical doctors undergo. And indeed this is where much of the 3L curriculum reform effectively aims to go. But why are we unnecessarily tying ourselves up with a mandated three year instruction model that seems to be based originally on the push to become “doctors” when we wound up not even considering ourselves to be doctors? Further, it makes the use of the LL.M. degree–a masters degree–as a very odd follow-on to what is technically the terminal professional degree in law (the J.D.). The LL.M. was supposed to be a research degree, but it is currently used just as much (if not more) for advanced professional training in a specialty field like tax or intellectual property.