Barak Obama Supports the Two-Year JD Degree

2013-09-20 20:36:53

“THIS is probably controversial to say, but what the heck,” said Barack Obama on August 23rd. “[L]aw schooimagesls would probably be wise to think about being two years instead of three.” Mr Obama once taught constitutional law; his idea could put many of his former colleagues out of work. Yet he has a point. (The Economist, Aug. 31st, 2013)

The point is that that the third year of law school is the “dreaded dead third year”. Law students in all JD programs in both the U.S and Canada complete the required core law courses associated with the practice of law within two years. The third year is devoted to taking a smattering of law related liberal studies and business courses.

An “approved Canadian qualifying law degree” consists of ten courses and threeyears of on site legal education. The Canada Law From Abroad Accreditation Page

(www.canadalawfromabroad.com) contains a list of the 10 courses. Click into it and familiarize yourself with them. Then go to any Canadian law school web site and click into their JD curriculum page. You’ll notice very quickly that these 10 courses, which are often reconfigured into an integrated package of 8-9, are completed within two years of the legal education program.

The origin of the three-year Juris Doctorate (JD) in the U.S. has its roots in efforts led by Harvard University to create an elite graduate academic legal education program that would cater to the higher echelons of the legal profession. A group of like- minded status conscious universities saw an opportunity to build a model for legal education that would enable them to corner the market for practitioners of law. They formed the American Association of Law Schools (AALS) and through a mutually beneficial lobbying effort with the American Bar Association (ABA) became the monopoly body for accredited legal education and subsequent bar admission.

The monopoly created a sellers market for law schools. You had to attend an accredited law school to be admitted to the bar. Law schools gradually shifted from professional vocational schools to academic jurisprudential academies; a law professor’s ideal setting for theoretical research and writing. The emphasis on legal education evolved into putting out graduates who were strong on legal theories but weak on legal practice. These became ideal candidates for clerking for judges in drafting legal opinions but ill equipped to actually design and deliver client focused legal services. The hallmark of success for American law students is to be nominated for the bar review and obtain a clerking position with a judge; the higher the judicial ranking the more prestigious the law school achievement.

The monopoly on legal education also placed the AALS in the enviable position of being able to arbitrarily set tuition fees. Law school became a very expensive educational proposition. Tuition was determined on the basis of what it would cost to support a very well paid echelon of law professors with enviable release time from teaching to research and write academic treatises. A review of the recently released controversial expose, Failing Law Schools, by former law school dean Brian Z. Tamanaha in a soon to be published News & Views is essential reading for those wanting full details.

The expensive three year JD with its dreaded dead third year is no longer sustainable. The combination of a dramatic shift in the market for legal services in a 21st century information age, the ability to outsource and offshore routine legal documentation work and resistance by clients to pay for “earn while they learn” programs for newly minted law graduates lacking in practical skills is rendering the traditional three year JD degree obsolete. A three-year JD is on longer the door opener to an entry-level position in a law firm.

Canadian law schools have come late to the parade; arguably too late. Suffering pangs of inferiority to their Ivey League neighbors to the south domestic law schools have gradually shifted from undergraduate professional schools granting LLB degrees to students not required to have university degrees for admission to make believe three year academic JD degree program providers. In Canada the degree program remained three years in length as a throwback to the days when students gained direct entry to apprentice like training with none or minimal post secondary education. Domestic law schools remain undergraduate institutions with no prior degree required for admission. The Federation of Law Societies of Canada (FLSC) confirmed the three-year mandate in 2008, just as the three-year JD model was spiraling to a crash. And crash it was and remains with an unemployment rate for newly minted law graduates hovering at 50%. The ABA Task Force on the Future of Legal Education Working Paper, which will be reviewed in a subsequent News & Views article, is now in the process of revisiting the three-year requirement for a JD and reinventing legal education.

UK regulatory authorities have been well ahead of the game in both reinventing legal services by doing away with the duopoly of the practice of law and authorizing the introduction of the two year “accelerated” LLB Degree for university graduates. Students take all of the core law course but are exempted from the spending a year taking a smattering of liberal studies oriented courses, some of which they may well have already taken in undergraduate education. Look for the U.S to follow the UK lead and implement a variation of this by either shifting to the UK two-year model or transforming the third year into an apprenticeship/articling year.

This is where prospective law students in Canada should be looking as well.