This is probably controversial to say, but what the heck, I’m in my second term so I can say it. (Laughter.) I believe, for example, that law schools would probably be wise to think about being two years instead of three years -- because by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.
Now, the question is can law schools maintain quality and keep good professors and sustain themselves without that third year. My suspicion is, is that if they thought creatively about it, they probably could. Now, if that’s true at a graduate level, there are probably some things that we could do at the undergraduate level as well.
This idea isn't original to Obama. Samuel Estreicher at NYU Law is probably the most vocal advocate for the plan, and Washington University in St. Louis's Brian Tamanaha endorsed it in his book, Failing Law Schools.
A number of schools — including Northwestern, Pepperdine, and Vermont Law — offer accelerated, two-year JD programs. Southwestern Law School in LA has had one since 1974. California, Vermont, Virginia, and Washington allow people to sit for the bar without attending law school if they undertake an apprenticeship with a judge or attorney; New York allows students who've completed at least one year of law school to do that instead of finishing and Maine allows that for students who've completed two.
But there are catches. The two-year degree programs that exist are basically three-year programs on steroids. Northwestern requires both two-year and three-year students to rack up the same number of credits, and tuition and fees are the same in the two-year program as in the three-year one. "Students in this program benefit financially by securing the opportunity cost associated with re-entering the workforce a year sooner and by foregoing one semester of education-related living expenses," the program website explains.
That's how Pepperdine and Southwestern's programs work too; Vermont's costs less in tuition but has the same academic requirements as the three-year program. Lower living expenses are progress, but these programs don't constitute a real reduction in the amount of coursework law school takes.
As for the apprenticeship option, it's real but basically no one uses it. From February 2007 to February 2013, the California bar exam was taken 82,154 times, and only 43 of those (0.05 percent) were attempts by people in the apprentice program. The pass rate for non-apprentice test-takers was 50.5 percent; for graduates of ABA-approved law schools, it was 60.2 percent. For apprentices, however, it was 27.9 percent. That may be because those who take that track are just less capable than those going to law schools, but it could also suggest that apprenticeships aren't great preparation.
And there's a question of what would actually be cut from law schools' curriculum. There are a number of courses, typically in the first or second year, that basically every law student takes. The list usually includes Civil Procedure, Torts, Contracts, Property, Legal Writing, Legal Research, and maybe Constitutional and/or Criminal Law. The ABA also requires an upper-level writing class and a class on "professional responsibility." If you add that all up, there's still room in the first and second year for electives, typically, but cutting the third year would greatly reduce those slots, which can be used to specialize and gain expertise in a particular kind of law, to practice in law clinics, and so forth.
That could be a concern at a time when critics argue that law schools are failing to provide adequate preparation for the actual practice of law. In the words of a widely cited Carnegie Foundation study on the topic, "Law schools face an increasingly urgent need to bridge the gap between analytical and practical knowledge." As University of Houston professor Michael Olivas told the Wall Street Journal, "If we're not producing good results in three years—and many of the critics say we are not—how are we going to do it in two year?"
Indeed, as Colleen Flaherty notes, Washington & Lee has made its entire third year practice oriented. The University of New Hampshire's law school has a program with deep practice-based training that results in both a JD and bar admission (without having to take the test) after three years. If the three years of law school could be rearranged to better train graduates, perhaps the third year's worth keeping. Then again, if that training could happen in the context of a paying internship instead of a costly year of grad school, that'd be even better.
So it matters what exactly we'd be trying to solve by cutting the third year of law school. If the goal is to make legal education more practice-based, there are ways to do that while preserving the third year, and those ought to be compared to on-the-job training alternatives.
And if the goal is to reduce the initial cost of law school, that's a solution to a problem that's much less severe than many make it out to be. The returns on law school are in the hundreds of thousands of dollars over someone's life, and between limitless grad PLUS loans and income-based repayment, financing the initial investment is getting easier. There's more to do on that, no doubt, not least making sure those who would benefit from IBR actually use it, and reducing tuition would certainly make that good investment more widely accessible. But making the returns even higher than they are now may not be most important thing to do here.
If we really want to reduce the cost of law school, we could go big and do what the British do. In the U.K., law is a three-year undergraduate course, rather than a postgraduate degree; see, for example, the description of Oxford's or Cambridge's programs. Then there's a bunch of vocational training that they have to engage in, including a one-year vocational course and then a pupillage or "training contract" with more experienced lawyers, lasting one or two years depending on what kind of lawyer you're becoming (the U.K. has two types).
The result is a much shorter educational process with way more practical training than exists in the U.S. And there's no real reason to think that Britain's lawyers are less competent than ours. Indeed, many states allow holders of U.K. law degrees to practice without even getting an L.L.M. in the U.S. A U.K.-style system would cost students far less and would likely be an even better deal than J.D.s are now. Maybe the answer isn't cutting the length of postgrad law degrees, but getting rid of them.