Lawyers Without Law School

The New York Times Room for Debate raises the question of whether the very old school method, reading the law, provides a “good way to avoid excessive law school debt and create different perspectives on the law?”  While the avoiding debt part is obvious, what it meant by “different perspective” is a bit less clear.  Are they asking, how does the law look to clueless, incompetent lawyers?

The participants range from Dean Erwin Chemerinsky, who shockingly thinks law school is critical and happens to have seats to fill at UC Irvine law school, to the great legal philosopher, David Lat, whose three hours as a lawyer preceding his glory at identifying tantalizing judicial divas by looking underneath their robes certainly provides a “different perspective” on the law, to Brian Tamanaha, whose Failing Law Schools book was a seminal work.

For those unaware, reading the law or apprenticeship as better describes it, was the normal way to become a lawyer a century ago.  In a simpler time, it was generally sufficient for a young man to apprentice with a more seasoned lawyer until he was ready to be entrusted with other people’s lives.  That was about 34,000 laws and a million opinions ago.

Today, in the handful of states where apprenticeship suffices to allow a person to take the bar, the results are poor.  They fail at alarming rates, and, not to be too rude about it, the bar exam is the absolute minimum competence one would expect.  It’s a low bar.

But with the emphasis being spread on law schools’ inability to provide new lawyers with the ability to actually practice, the disconnect between what law schools teach and what lawyers do, plus the cost of law school in light of its return on investment, the efficacy of reading law is being given a second look.

Lat, after taking the less-controversial position that a combination of law school and apprenticeship would be best, goes down a curious hole:

But even apprenticeship as a standalone option is worth having on the table. It’s hard to say whether apprenticeship is better or worse than law school, at least when you take cost into account. True, apprentices fail the bar exam at a much higher rate than graduates of A.B.A.-accredited law schools, but at least they don’t have the same debt burdens as law school grads.

So the future of the profession should be incompetent but debt free?  Similarly supporting a mixed approach as best, Tamanaha also supports apprenticeship as a direct path:

An apprenticeship is a sensible pathway to the legal profession because an essential way to be trained as a lawyer is by engaging in supervised legal tasks in actual legal settings.

Unfortunately, apprenticeships are perceived as inferior, rather than as a legitimate alternative means to becoming a lawyer. Because apprenticeships are discouraged, few people sign up and the quality of supervision varies.

It’s unclear how completely ignoring a doctrinal foundation of knowledge before “engaging in supervised legal tasks” makes apprenticeship sensible.  Nor is it clear that the cause and effect, apprenticeships are discouraged results in dubious quality of supervision, is accurate.

One thing that comes out of this discussion as fairly clear is that the optimal training for a new lawyer would involve both a legal education, where students can gain a doctrinal foundation in law and, dare I say it, learn to think like a lawyer, before moving into practical training so they learn how to be a lawyer.

But this ignores a huge, gaping hole in the training of lawyers;  When the United States went from an apprenticeship approach to a law school approach, we went all in.  Unlike some other countries, we never established an articling/pupillage process, where law students went from school to a position as apprentice in the normal course of affairs on their way to becoming a lawyer.  Sorry to say, but the Brits (yes, even the Canadians) do it better than we do.

As fabulous an idea as it may seem to create a law school/apprenticeship process now, it’s a functional impossibility.  Had it always been the way, perhaps lawyers would have accommodated the duty to train new lawyers in the costs and structure of their practices. But we didn’t. Now, we lack the real estate, the finances, the tolerance and the competency to do so.

Contrary to the assumptions of those who don’t practice law, this is not a nation of 1000 lawyer firms, but of sole practitioners and small firms who work hard, keep costs under control, and struggle to make ends meet.  There is no room to take on a gaggle of law students, all bright-eyed and delicate, who want a desk, a modest salary and a tummy rub. We have clients to represent, and they come first, no matter how much the lack of constant positive attention will make law students cry.

So the best answer, the combination of law school and apprenticeship, provides a great philosophical response, but like pretty much everything else in a discussion of legal education, doesn’t sync well with reality.  Notably, the New York Times didn’t bother to invite anyone who actually practices law to participate in the debate, which could explain why nobody involved realized this.

40 thoughts on “Lawyers Without Law School

  1. Phil Nostrand

    Mr. Greenfield,
    I came to your page via another attorney’s blog where he spoke highly of your blog. This was the first post I read. I also do not post comments very often. [note: the above isn’t pertinent to my comment, rather I wanted to give you perspective about me & also credit “RH,” although I don’t remember his name & fear if I tried to get it from my iPhone I’d lose what I’ve written so far.]
    Have you heard about schools setting up their own post-graduate programs to address this dilemma? For example, my alma matta, Rutgers School of Law–Newark began a program last year that offered a few graduates a stipend to practice law as part of a “firm” dedicated to providing low-bono legal assistance to the community. This idea, where new lawyers can get experience with the oversight of a few seasoned attorneys, looks like a good model to help prepare lawyers to start out on their own.

    1. SHG Post author

      Of course. Both these post-grad “law firms” as well as clinical courses provide an opportunity for experience, relative to the quality of their instruction/supervision. The issue with the post-grad law firms is that they exist more for gaming the US News rankings than to train, by creating the appearance of grads having jobs after law school. I have an issue with the deceptive genesis or use of these programs.

      At the same time, there is an issue with the use of n00bs to represent low and pro bono clients. It may be better than nothing (or maybe not), but the poor aren’t practice fodder for less-than-competent kids. The point is, it’s a hugely complex problem and issue, and simplistic “solutions” carry a great many problems that are largely unaddressed.

      The usual reaction to this is to counter, “then what is the solution.” Unfortunately, there are too many moving parts, issues, stakeholders involved to expect anything other than a Menckian answer. In other words, just because there is a problem doesn’t mean there is a simple, clear and easy answer.

      1. Dan

        A wise old physician once told me that although they don’t like to say it out loud, medical training depends on practicing on poor people. I’m not sure what the point is, but happy friday.

          1. Dan

            Yes. Yes I do. But as a 19 year old kid, I decided science wasn’t my thing.

            Yet another problem goes unsolved by my failure to invent a time machine.

      2. Phil

        SHG, I take exception to your blanket characterization that the pursuit of rankings is a law school’s primary reason to maintain a clinical program and start a post-grad firm. Not to mention that there are probably lower hanging fruit to snag for a school really out to improve its US News status–assuming the school is exceptionally bothered by its rank.

        As far as who gets experience how and from whom–wouldn’t some newly hired white shoe associate also be less than competent despite representing some well-heeled client? Sure–it’s a tough and complicated problem without any easy answers, but does that mean it’s better to develop some complicated solution that fully addresses the myriad major problems? I doubt you would agree with that.

        But perhaps all you’re saying is that, if these programs were established without an agenda related to ranking, and well qualified supervisors/instructors were available, this is at least one approach that can help in the transition from law student to lawyer.

  2. BJC

    I interpreted Lat’s comment about bar failure and debt loads not to be, “better to be incompetent than have no debt,” but instead, “if you can’t hack it as a lawyer, at least you didn’t pay $100,000+ to discover that.”

    Under the apprenticeship system as I’ve seen in practiced in my home state of Virginia, most apprentices are already paralegals at their law firms, so they are paid as they work towards the license, and even if they fail, they still have jobs.

    And if, having failed, they decide law isn’t for them, well, then they don’t need to make the kind of money they would if they had law school debt, so they can get a real job somewhere else in the world and make a productive contribution to society.

    1. SHG Post author

      There is nothing in there that sounds remotely like a recipe for success or to build competent lawyers. It almost smacks of failure, for the price of a bar exam, any para can roll the dice and see if he can pull it off. If so, great, he’s a lawyer. If not, no big deal, all it cost was the exam fee. Hardly the future of the profession that most of us hope for.

  3. RJP

    The third year of law school, though an enjoyable year filled with recreation and classes like “Philosophy and the Law” (which, come to think of it, wasn’t all that great), struck me as superfluous. How about allowing law students to take the Bar after two years of study? If they fail, they can return to school for another semester, or another year. If they pass, great — the foundation taught them what they needed to know, and they’ll get their experience on the job (which we all do).

    1. SHG Post author

      As this isn’t a post about eliminating the third year, let’s not get into another open wound here. Just so you know, the fact that the third year is largely wasted now isn’t an excuse to keep it or toss it, but another demonstration of law schools and prawfs not having a clue why students pay them tuition.

      My personal fav is Law and Nietzsche, because you never know when that will come in handy.

      [Ed. Note: I cheated and added to my comment as you were replying. Sorry about that.]

      1. RJP

        Understood, but the gist of your post seems to be that everyone in the NYT debate is answering the wrong question, as it has no practical solution — which by the way, could have been made clear if the NYT had simply allowed, ahem, a real practitioner to contribute two cents. The alternative is that the question was right, but it has no good answer, in which case, nihilism.

        1. SHG Post author

          The question of reading the law v. law school is tough enough. The question of how to make law school more beneficial, effective and inexpensive is another, also a far more complex question than would appear from reacting to bits of “solutions” here and there.

          Even though the apprenticeship question is complex, it’s far less complex and vexing than reforming law school to satisfy all the interests and needs of the students, the profession, the academy and society.

  4. Richard

    It’s not quite that easy, at least in California. The paralegal must submit a 4 year course of study (requiring at least 18 hours a week of study during business hours, including 5 hourse of study directly supervised by the attorney) and have it approved, and the supervising attorney is required to do monthly testing and provide reports to the bar every six months. Detail as to the material covered, including the specific chapters and pages, is required. The paralegal must also pass the baby bar after the first year of study in order to continue. Although passage rates are low, the numbers are comparable to the unaccredited law schools that are also permitted in California.

    1. SHG Post author

      That sounds like a reasonably rigorous course of study, maybe more a hybrid between law school and apprenticeship? If that was the case everywhere, there would be a far stronger case for an alternative to law school.

      1. RJP

        Virginia’s rules are similarly rigorous. A reader must submit to three years of study, each consisting of at least 40 calendar weeks. At least 25 hours per week must be spent studying, 18 of which must be spent at the supervising attorney’s office. The board of bar examiners provides the courses, and there are regular written exams. The supervising attorney must provide regular reports, or the board will remove him or her from that role. The supervising attorney must have practiced in Virginia at least 10 of the previous 12 years or be a retired trial judge. According to the board of bar examiners, from 2000-2009, there were nearly 13,000 people who passed the VA Bar; 25 of them read the law. [Ed. Note: Link deleted per rules.]

  5. Brad Walters

    The point about higher bar exam failure rates is not of any consequence. Those who fail do not practice law. That higher failure rate is likely due not to the lack of attending law school, but foregoing the cost of a bar prep class which does more to prepare one for the bar exam than law school does. The Socratic method does not do a good job of confirming whether or not a student “got it” when he ead the case law. A grade at the end of the semester based often upon one complex scenario is the only feedback one gets as to how well one grasps the case law. Law school is a barrier to entry that keeps out financially disadvantaged. Bar exams keep out the incompetent. So who cares how many fail if they have not attended a law school when that is not likely the reason they failed?

    1. SHG Post author

      Not quite. Think of the reasons why a group that has read the law fail at disproportionate rates to a group that goes do law school. Even though some in the former will pass, and some in the latter will fail, each is a reflection on their competency.

      And remember, the bar exam is very low bar, so bar passage as a minimum measure of competence informs us that the disproportionately low pass rate for reading the law reflects a substantial competence gap, no matter how you nitpick law school.

      1. Brad Walters

        I think you would have to compare the average passing bar exam score of law school grads to the law readers to determine if there is a competency gap created by foregoing law school. I would wager that more people who attend law school take a bar prep class than those who read. The disparity in failure rates is more likely related to people skipping the $2500 + for the prep course for the same reasons they skipped law school. A bar score comparison of law school grads who skipped a commercial prep course to readers who also skipped a commercial prep course would compare apples to apples regarding reasons for performance levels on the bar exam. It would also be informative to poll the clients of both groups of bar passers during the first year of practice.

        1. SHG Post author

          I don’t give law school a great deal of credit, but you give them none. It’s a good education for the most part. It’s just not sufficient. Without a law school education, a fully developed doctrinal grasp of the law is, well, pretty damn hard. I’m not saying it can’t be done, but it’s very hard.

  6. Wheeze the People™

    Passing the bar exam is what makes a somebody an official lawyer (a little oversimplification), albeit a good, bad, or ugly lawyer, who’s to really know until some years down the road of practice??

    So one model that makes sense to me is that the bar exam should be open to all comers; I don’t care if you divined your legal chops from studying ancient cave drawings, went to a fancy-schmancy law school, or are just the self-starter type that can figure out how to get things done and accomplish difficult goals. Let the prodigal kids take the bar at age 16, if they think they have a shot at passing. There are a 100 way to skin the skunk, if the primary goal is passing the bar. Yeah, make the bar tougher and more consistent across the states, to be sure. And for the those that pass, publicly provide the individual’s scores on a detailed basis with comparative info . . .

    Hiring greenbeans can then be based on measurable results on the bar exam, while providing no incentive to even care about how one came to pass the bar in the first instance . . .

    So sayeth Wheeze *cough* *hack* The People

    1. SHG Post author

      No. You’ve got the grasp of what it means to be a lawyer that these puppies have. Passing the bar is the minimal technical qualification. It does not make anyone a competent lawyer. We’re trying to make sure that people who have a license are really qualified to handle other people’s lives, not make it as absurdly risky the public as humanly possible.

      You’ve seen bad lawyers. So your idea is to have even worse, less qualified, less competent lawyers, just because they passed some bar exam? Not good. Not good at all.

      1. Brad Walters

        Getting into law school, not graduating is where the high bar of law school is set. Not very many flunk out of law school once accepted. Incorporating some LSAT type standards into the bar exam would solve the low bar of passing the bar exam. Then it would also measure aptitude as well as practical knowledge needed to practice competently.

        1. SHG Post author

          Getting into law school, not graduating is where the high bar of law school is set.

          If that’s your high bar, you’re aiming low. None of it is all that hard, but that doesn’t mean you don’t benefit from the education. And if it was up to me, half the law schools would close and a third of the class at the rest would flunk out. But then, that’s just me.

  7. David

    I live and work in the Province of Ontario, Canada (I practice part-time, and am also called in NY), and there have been enough problems with finding enough articling positions here (1 year of practical experience under lawyer supervision after graduating the usual 3-year law school) that they’ve introduce as a pilot project an 8-month law practice program (LPP) consisting of 4 months training (at a university) followed by a 4 month legal placement. Somewhat similar to what I think Australia has done. So save your applause for the Canadian process until we see how it turns out a few years down the road…

  8. BL1Y

    Here’s a wacky idea: How about an academic law undergraduate major, and a two year professional/trade-oriented program?

    The undergrad major would consist largely of the current core law school curriculum: contracts, torts, crim law, civ pro, con law, etc, and probably a mandatory jurisprudence class would be good to round things out, as well as a couple electives.

    Then law school would be a two year program, which would be about 2/3-3/4 practical experience. Externships, clinics, writing workshops, that sort of thing. The typical semester would be a 9 credit clinic, 3 credit skills class, 3 credit academic class. Students will have almost all of their classes in one area of law (though obviously allowing for the ways legal areas overlap, and possibly a general practitioner track as well).

    To address SHG’s main concern (not ruining clients’ lives), law school grads would have roughly the same total number of credit hours. A typical undergrad major runs 30-36 credits, and the 1L year is usually 30. But, I believe studying the core curriculum over a 3-4 year period will let students learn a whole lot more — the structure of the 1L year is hardly conducive to serious learning, it’s a mere cram marathon. For their practical education, they’re getting something like 2x as much classroom skills training, and 8x as much clinic experience. [Here’s the math: 2 research and writing courses vs. 4 skills classes. For clinics I looked at the number of spots available in NYU clinics, counted year long clinics as two clinics, and pretended that every spot was filled and they went only to JD students and not LLMs. It came out to .55 clinics per 2/3L; compare that to 4 clinics.] Maybe this still isn’t enough to satisfy SHG, but damned if I think anything’s going to come much closer, especially considering that those two years are going to be concentrated on the area they’ll be practicing in.

    And speaking of that, isn’t it horrible to lock students in to a practice area? Yeah. And the current model locks them in when they accept their second summer job at in the middle of their third semester. My model gives them 4 whole years of undergrad to think about it, plus any time they want to take before enrolling in law school.

    “Say, Billy, any other benefits?” There sure are, thanks for asking! This model also provides a potential solution to the “JD Preferred” market. Assuming those jobs genuinely do benefit from you having some legal knowledge, there’s a good chance you could get them with a BA in law. If that’s the type of job you want, now you just go for it. It saves you the expense of going to law school, and it makes law schools more accountable when their grads are taking the same jobs as law BAs; no more deniability.

    “But what about the costs?” By cutting out the third year (well, really we’re time-shifting the first year, but whatever), costs are reduced by more than one third. We’re cutting 1 year, which is a third of the years, but it’s also the most expensive year due to two years worth of tuition hikes, and it’s one less year accruing interest on debt, and one less year of opportunity cost.

    “But won’t the school be losing money? Law profs gotta eat, yo!” Yes, but law schools ought to lose less than a third of their revenue. Law profs would still be teaching the undergrad classes (sorry, junior faculty), so the loss to the law school won’t be a full year, but just the difference between the law school tuition rate and the undergrad tuition rate for those 30-36 credits. If law school is $40k, and undergrad $15k, then the law department gets $105k instead of $120k. I know it’s a bit more complicated than that, but it should be close enough. Also, an undergrad major could bring in greater enrollment, which might result in a net gain for the school.

    “So who’s the loser here?” Well, the law school is probably going to lose a little bit of income. It’ll also be hard to fill those law and literature courses which exist primarily as a reprieve after being burned out 1L year. But the big loser would be the departments pre-law kids are no longer enrolling in, like English, poli sci, history, and philosophy. But I don’t have a problem no longer letting these programs engorge themselves on kids just sitting it out until law school. There’s no reason why pre-law students should have to subsidize these programs, and I’m saying that as someone who did a philosophy major in a program that specifically was designed to draw in pre-law kids, and needed that appeal in order to survive. Sorry, but you need to survive on your own merits.

    “But law students benefit from a wide array of education. We need lawyers who’ve studied history, and art, and Shakespeare!” Oh go shove it up your ass. If law schools really thought that was important that would have some requirement about what you need to study in undergrad rather than absolutely no requirement at all. Plus there’s always double majors.

    1. SHG Post author

      So what part of a post about apprenticeship made you think this was an opportunity for a rant about your vision of law school? Not that your rant isn’t an interesting one with some very worthwhile ideas, but still.

      1. BL1Y

        If the kitchen’s on fire, I’m not going to put my fire extinguisher down just because a few people are debating the merits of baking soda as a fire suppressant.

        1. SHG Post author

          It’s not your fire extinguisher. It’s mine. It gets used here when and if I chose to use it. You have no say in it whatsoever, and it appears only because of my largesse.

          See how I posted your off-topic rant, and even said nice things about it? instead of a thank you, I get an assertion of slackoisie entitlement. This is why you can’t have nice things.

          1. BL1Y

            What are you talking about? I’ve got several nice things. I have three leather bound books signed by Supreme Court justices. I think those are quite nice. And while my Kenner Luke and Obi-Wan figures only have single telescoping lightsabers instead of the double telescoping ones, I still think they’re pretty nice. So really, I have no idea what you’re talking about.

  9. Pingback: The education of Mr. Justice Jackson–and Kopf’s one question « Hercules and the umpire.

  10. traderprofit

    After reading your blog for months, commenting once or twice, and reading your responses to other attorneys and laymen, the only thing I’ve concluded is you’re just the type of thoughtful, intelligent , totally driven asshole I would hire. Trust me, that’s a compliment.
    I realize that comment is off-topic, but I just laugh every time I read some of your dickish responses.

    1. SHG Post author

      Meh. Oddly enough, that’s how I feel about some comments. Go figure.

      Even more oddly, my dickish responses are one of the things that many people find critical to preventing this place from becoming a cesspool of angry, crazy, stupid people. They appreciate it. Others, not so much. I’m good with that.

      1. traderprofit

        Sarcasm appreciated. I’d bet in the courtroom you can rip apart any hole in a witness’s testimony without pissing off the judge or jury.
        Actually, check, that. No need to bet. I’m certain of it.
        As to the subject of the post I can’t imagine hiring an attorney who didn’t attend law school, and in the end, smart people hire good lawyers, in whatever manner they personally determine “good.”

        The ability to be not only technically proficient, but also a businessman is quite a skill set. I’d scoff at hiring a non-degreed individual for anything other than the simplest of matters.

        1. SHG Post author

          I’d bet in the courtroom you can rip apart any hole in a witness’s testimony without pissing off the judge or jury.

          If only it was that easy.

          I can’t imagine hiring an attorney who didn’t attend law school.

          I can’t either, though I’m not quite so sure I would be dogmatic about it. Consider someone ten years into practice, who demonstrated the thoughtfulness, integrity and dedication one would demand of their lawyer. Would you ask if they went to law school? I don’t think I would.

          1. Anonymous

            There is no point to discriminate against someone with 10 years of solid practice and no school. The point is, if you are right, there will be very rare.

            It would be like asking recent law graduate for high school history grades. It is irrelevant, it is just that most of those who passed law school and bar exam probably did better then D.

  11. Pierre Menard

    LOL just came across this from Hercules, I second the motion about the amusing rebuttals to comments. Encore!

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