Friday, August 17, 2012

NYU's Estreicher: Allow Students to Sit for Bar After Two Years of Law School

We've touched on this idea before, but here is Samuel Estreicher's take:

This paper argues for a revision of the rules of the New York Court of Appeals to allow students to sit for the bar after two years of law school classes. This revision, reflecting what the rule had been when both Presidents Theodore Roosevelt and Franklin Delano Roosevelt and Associate Justice Benjamin Cardozo attended Columbia Law School, would cut the costs of legal education for many students by 1/3, hence addressing in part the concern that law school debt drives down the availability of public service lawyers. Moreover, such a move would put pressure on law schools to deliver educational services more attuned to the practical needs of their students in order to secure their enrollment for the third year. This is a matter of considerable importance at a time many law schools place fewer than half of their graduates in full-time positions requiring legal training. Although the proposal does not address what law schools do or should do, reducing the law school study requirement for bar eligibility from three to two years may encourage some law schools within New York to embrace a more professional than rather purely academic orientation that should in turn lead to enhanced skills trainingf or students likely to be practising on their own or in small firms not capable of providing sustained training. A better trained solo or small-firm practitioner will better serve the legal needs of Americans of average means.

Thoughts from readers?  Signed comments only:  full name and e-mail address required.

UPDATE:  The paper is here. 





Legal Profession, Of Academic Interest | Permalink


There are two related issues here: when should students be able to sit for the bar exam, and when should students be eligible for admission to the bar. The entire paper does not seem to be available on-line, but it appears from the abstract that the proposal contemplates that students would both be able to sit for the bar and admitted to practice after two years. I made a slightly different proposal at the Faculty Lounge that would allow students to sit for the bar exam after two years, but would require them to complete three years to be admitted to the bar.

I look forward to reading the whole paper, but I would note that my proposed approach is less contrary to various vested interests, and therefore would be more likely to be actually enacted.

Posted by: Ben Barros | Aug 17, 2012 8:37:14 AM

There's a questionable economic assumption in the proposal: that reducing law school from 3 years to 2 years would result in a 1/3 reduction in tuition. If students are willing to pay $150k over 3 years for the right to practice law, is there any reason to think that they won't be willing to pay the same $150k over 2 years? Law schools will price what the market will bear, so if willingness to pay isn't diminished, I would expect tuition to climb. Instead of $50k/year for 3 years, it will be $75k/year for 2 years, meaning no cost savings and possibly less-well-trained lawyers.

As it happens, it's hard to see law school tuition as an enormous bar to public service given the new federal Public Service Loan Forgiveness Program (the terms of which do not seem to be widely known): all debt is forgiven after 10 years of income-based or income-contingent payments while working at a qualified public service organization.

Posted by: Adam Levitin | Aug 17, 2012 9:22:53 AM

I am in favor of this. I think the State of Georgia allows for this already with students taking the bar in their third year of law school before graduation. I am not sure it will lead to a more practical orientation for law schools, though. I think pressure for that will come from the bar and internal to law school pushes to make the law school curriculum more relevant. But relevance is of course relative. Preparing students for practice in the local state penal system is practical and relevant, but does it prepare them for life and give them options beyond the borders of the state?

Posted by: Shubha Ghosh | Aug 17, 2012 9:47:50 AM

That last sentence is the crux. Better serving a wider array of needs ought to be a high priority of any professional adjustment like this. Let law schools respond accordingly, some by beefing up their "practical" offerings as Estreicher suggests, while perhaps others choose to find ways to reaffirm their "academic" commitments. It seems to me the relevant past post here is this one: . We shouldn't be reading "academic" exclusively as a euphemism for "ivory tower," to be distinguished from a more concrete "real world." As difficult as it may be to measure, there is value to spending at least part of one's three years in law school exploring areas of study one will have little opportunity to explore outside of law school. That said, based on my experience in California, I can't imagine too many students having significantly increased trouble with the bar after only two years of law school study, followed by a bar preparation course.

By the way, the paper has been withdrawn from NELLCO's repository; for the full proposal see .

Posted by: Dean C. Rowan | Aug 17, 2012 10:25:21 AM

Thanks for this -- very interesting. The paper is no longer available at the link you provided; however, I'm guessing the paper posted at workplace blog is the one that you're referring to:

A couple of things interest me about this paper. First, it's surprisingly historical in focus (such as the discussion of FDR and Cardozo and appendix A, which lists New York's bar requirements going back to the 1830s).

Second, do I understand that there would be no clinical experience in the first two years? That's my reading of this.

Third, I would have thought there'd be more discussion of the benefits of a third year of law school (such as it allows students to take courses in a broader range and also in more depth than if everything has to be done in two years; for those in a clinic or externship, they get supervised hands-on experience). In the cost-benefit world we live in, shouldn't there be some consideration of benefits?

Fourth, my guess is the bar will not be enthusiastic about lowering the barriers to the profession. Neverthless, I look forward to hearing more about this.

Posted by: Alfred Brophy | Aug 17, 2012 10:33:13 AM

Of course, there's a critical unexamined (pun intended) assumption here: That the bar exam remains necessary or appropriate as a means of screening entry to the profession. What does it tell us when Professor Sullivan fails the bar exam (admittedly, the California bar exam, which is somewhat different from the New York bar exam) in comparison to some of those who passed it? And that's far from an unprecedented situation; it may seem an "outlier", but the number of Order of the Coif level members who fail a bar exam constructed almost identically to what they've already excelled at should be zero, but is virtually always quite a bit higher than that.

Let's not get too excited about eligibility for the bar exam before confirming that we want to continue with the exam in the first place.

Posted by: C.E. Petit | Aug 17, 2012 12:00:48 PM

To Professor Petit's point: There are lots of moving parts to the organization of how novitiates are admitted into the profession. The bar exam is not great, and I suppose some system of apprenticeship post law school might be more appropriate. Even the German approach of two state exams and apprenticeship might do wonders for the profession here (although keep in mind that the law degree is an undergraduate degree in Germany). But some sort of exam is more desirable than say automatic entry based on doing well in law school. Such a privilege seems to lend itself to provincialism that cannot be good for the profession or for the education of students, whatever benefits it may have for the state and the legal infrastructure on which it relies (like prisons). I think the main concern with the proposal is that law school might be viewed even more as preparation for the bar than as training in understanding how legal institutions and the profession work. From a scholarship perspective, I suppose there are benefits. If one views the teaching function as preparation for a relatively rote exam, then that frees up time for writing and the other scholarly and non-scholarly activities of law professors.

Posted by: Shubha Ghosh | Aug 18, 2012 5:18:42 AM

Prof. Levitin raises some important issues that I wish to expand on. Law schools may charge more in tuition. As he points out, multiplying the annual tuition by 1.5 eviscerates any tuition savings. That calculus, however, does not account for opportunity cost. Law students, even if they paid 1.5 times the annual tuition, come out ahead in a two year system.

I offer an additional market response. If law schools graduate students in two years rather than three years, law schools could use the extra capacity to train even more lawyers. The simple throughput calculation ( ) would mean that a school that normally maintains enrollment at 600 students could graduate 300 students per year instead of 200 students per year.

Neither model alone offers a good prediction of behavior in today's market. Law schools face constraints. I actually predict that the wholesale adoption of the two year model will enhance competition among law schools and may eventually lead to some level of law school failure.

In the short term and at a micro level, law schools cannot easily reduce capacity. Buildings do not magically disappear or shrink; tenured faculty will remain employed. Law schools, as a result, would need to make up lost revenues through a combination of increased annual tuition *and* larger class size. While annual tuition will increase, total cost will decrease. Similarly, while class size will increase, total enrollment may decrease.

In the long run, some law schools will face difficulty and may drastically downsize. Applicants (inputs) are not created equal and the applicant pool lacks depth. Thus, some law schools will find it difficult to attract students capable of passing the bar (bad measure or not). Some of these schools may even have to close their doors.

Of course, wide-scale adoption isn't contemplated by the paper. I imagine partial adoption will mute predicted impact. It also goes without saying that my predictions rely on numerous assumptions. All predictions come with guess work, so I'd like to know what others think.

Posted by: H. Shawaf | Sep 8, 2012 10:59:03 AM

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