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Legal Limits? Berkeley debates cutting law school to two years

September 10, 2013

To those who have just commenced their law studies at Berkeley’s Boalt Hall, a hearty congratulations!  Now, for your own peace of mind, stop reading.

As those with their eyes on the bar know, law school is no longer the safe bet that it once was. Tuition is up, government grants are withering, and legal jobs are harder to come by yet more essential than ever, given soaring student loan debt among would-be lawyers.

So it’s not surprising that the president of the United States, himself a former law school professor, has embraced a rather radical solution: encouraging law schools to cut their programs to two years instead of three. “The third year (students would) be better off clerking or practicing in a firm, even if they weren’t getting paid that much,” he said. “That step alone would reduce the cost for the student.” President Obama’s high-profile endorsement of the idea, offered at a town hall event at New York’s Binghamton University last month, adds fresh fuel to a debate that’s been going on for some time. At UC Berkeley, it has been met with interest—and wariness.

Asked at his back-to-school briefing whether he thought abbreviating law school was a good solution, new Chancellor Nicholas Dirks first joked, “You know, maybe at Harvard…” before adding, “But I think really this is a serious matter that needs to be determined within the law school world, since there really are very complicated things that would be involved in shortening the length of that education.

“We do welcome, very much so, the interest of President Obama in the kinds of issues that he’s been talking about,” Dirks continued. “But I think that it’s important that we partner with the administration, with the Department of Education, in order to assure that what might seem to be a quick fix in some instances—whether it’s in regard to the length of the degree, whether it’s in regard to open online courses, whether it’s in regard to the direct relationship between what you student in school and how you actually live your life and make a living…” is actually wise.

President Obama has said that he suspects law schools—“if they thought creatively about it”— could preserve the same level of pedagogical quality in two-thirds the time. And some law professors believe he’s got a point.

“The cost of education is absolutely off the charts,” says Jesse Choper, a professor of public law at UC Berkeley. Last April, Choper signed an open letter to the American Bar Association, joining 65 other legal scholars nationwide in calling the association to help “alter the economics of legal education…before our institutions are reshaped in ways beyond our control.”

“You’ve got to figure out a way in which these issues can be dealt with more adequately, systemically, and thoughtfully than they are today,” Choper says. And a good place to start is by asking the question: “What is really necessary, if anything, that can’t be provided in two years?”

He gets an argument on that point from Berkeley law professor John Yoo, who wrote last year that he thinks “the argument for shortening law school is made mostly by students, who are by nature short-sighted. They should talk to retiring lawyers to get a better perspective. How many lawyers, after a career of 30 years, would say, “Yes, I sure am glad I got into practice one year earlier and had a career of 30 years instead of 29.’ Instead, I bet most would say, ‘I am glad that I got to take more courses in that last year of my education,’  Yoo continued. “Indeed, a lawyer may find the subject that becomes the focus of their career because they happen to take a course, by chance, in their third year.”

Besides, legal education should be more than technical training, says Herma Hill Kay, a former dean at  Berkeley Law who still teaches there. “Taking away the year would force schools into making a choice between providing a broader education or just essentially teaching the nuts and bolts, which I think would make for a really narrow segment of the bar,” she says. Kay adds that she understands the appeal of the solution—“one less year of school means one less year of debt”—but calls it a “quick fix” to a vastly more complicated problem.

The problem, however complicated, is becoming critical to law school students and recent grads who confront a far more rugged career landscape than their predecessors.

Consider a report issued last month by the National Association for Legal Career Professionals. Employment for recent grads, while up for the first time since the beginning of the recession, may spell out a “new, discouraging normal for jurist job market.” From a sample of Class of 2012 law grads last February, the survey cited in the report noted that about 85 percent had jobs. Not too shabby, particularly compared to the population at large, until the same group was asked about jobs that required passage of the bar—only 64 percent had one of those. Another 7 percent were working in fields unrelated to law and nearly 11 percent were involuntarily unemployed.

That’s bad news for those counting on a cushy law job to help pay off crushing student debt. And according to the American Bar Association, it is crushing: $125,000 for the average private school grad, $75,700 for the public counterpart. A U.S. News and World Report survey found the Berkeley grad average to be $155,349.

Such depressing data makes a clear case for change to critics such as Elie Mystal, who like the President earned his law degree from Harvard. “I still think it would be better for students to have to spend one less year on law school tuition,” he wrote in a column for Above the Law, “but you’ll have to pry an extra year of money out of the cold, dead hands of law faculty and deans.”

Nonetheless, some schools are already revising their degree programs.  

“In many ways, we’ve cut down on what we used to do as law schools,” Choper says. “It’s quite common to now have two years or less of traditional education and then have internships and externships at law offices and with judges. We already do that….Obviously, we make sure that the students aren’t being used, (that they’re) not just filing papers, but actually learning.”

Easier said than done. David Oppenheimer, director of Berkeley Law’s professional skills program, says he supports the basic idea of students putting their third year toward practical training, but wonders about the details.

“If law school is reduced to two years, followed by an apprenticeship supervised by a practicing lawyer, someone will need to train thousands of lawyers on teaching, supervision and mentoring skills,” he tells us via email. That isn’t a problem at Berkeley, says Oppenheimer, where students take courses on the nuts and bolts of lawyering from L1, and where internship programs supervised by trained mentors is not uncommon.

“For schools that don’t, or can’t, make the commitment to professional skills training that we’ve made at Cal, the President’s proposal makes a lot of sense,” he says.

—Ben Christopher

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