By Edward Zelinsky
President Obama has joined with other critics of contemporary legal education in calling for the reduction of law school to a two year program. The President and these other critics are wrong. Indeed, the remedy they propose for the ills of legal education has it exactly backward. Law school should not be shortened; it should be lengthened. The standard curriculum for a juris doctorate degree should be increased to four years.
Three considerations counsel the need for an additional year of law school:
First, there is today much more law to learn than there was in the past. There are today whole new fields of law which did not exist a generation ago, e.g., health care law. Moreover, within pre-existing areas of the law, the amount of law has expanded enormously over the last two decades.
Consider, for example, the area in which I write and teach, taxation. No one doubts that the current tax law is more complicated and extensive than the taw law in effect when I went to law school. Important subspecialties, e.g., pensions, partnership tax, and international tax, have grown in complexity and importance.
Many critics belittle the substantive business of legal education by dismissing my tax courses as theoretical or doctrinal. But my courses are where my students learn the law and there is much more law to learn than there was a generation ago.
Imagine a critic of medical education who looked at the explosion of medical science in recent decades and called for less medical schooling. That is precisely what the advocates of a two year JD program are doing.
Second, through expanded LLM programs, we are de facto creeping towards four years of legal education. In many areas of the law, such as tax, LLM degrees have grown in prominence. Several factors are fueling the expansion of LLM programs. Chief among these is that there is now more law to cover in a fourth year of law school.
Rather than the currently haphazard growth of LLM programs, it would be more sensible to require universally a fourth year of education for all law students.
Third, many of the same critics who favor a two year law school curriculum also support expanded clinical education for law students. Such expanded clinical education should not come at the expense of substantive legal education but in addition to it. One way of thinking about the proposed fourth year of law school is that it responds to the demand for more clinical education in light of the simultaneously growing need for more substantive legal education.
The most serious argument against a fourth year of law school is the additional cost it would entail. Legal education is already too expensive. Adding a fourth year would impart even greater urgency to task of controlling the expense of law school, just as there is currently great urgency to the task of controlling the costs of undergraduate education.
Today’s panacea for controlling educational expenses is technology, most prominently online courses. I’m skeptical of panaceas in general and this panacea in particular. However, there are areas in which law school faculties and administrations can genuinely achieve economies. There is nothing sacrosanct about current teaching loads or about the much noted growth of administrative outlays by institutions of higher education.
An ancillary benefit of a fourth year of legal education would, in the short run, be a reduction in the supply of law school graduates. A fourth year would also abate the job-related pressures students currently feel after the second year of law school by giving students another bite of the employment-related apple after their third year.
The world is more complicated than it used to be. For better or worse, the law’s complexity has grown apace. Well-trained lawyers in the 21st century will need to know more law than did their predecessors. A mandatory, universal fourth year of law school is the right response to the shortcomings of legal education in a complex world.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.