Is Law School Itself a Waste of Time?

On Thursday 1/5/06 I submitted a post called Is the Third Year of Law School a Waste of Time and Money? Over on Sports Law Blog my colleague, Professor Michael McCann, had a similar post, which I recommend you check out as well.

In my post, I suggested that adding a fourth year of law school might be a good idea. (Not a popular idea, I know.) The comments I received were so good that I felt an additional post on the matter was in order. Check them out. Some key premises of the comments were these: why do we even need law schools at all? Aren't they just protectionist barriers to entry? Wouldn't society be better served if we allowed more people to practice law, and thus drive the cost down?

These are serious and very valid questions, and they deserve serious thought.

Much of the frustration with modern law schools does arise from the fact that they have a monopoly on entry into the law profession. The justification for this is that society benefits if we require lawyers to go through a demanding course of instruction before representing people in real life. Now, I do think there is some merit to that. But it is also true, as with any monopoly, that you get inefficiencies. Why is law school 3 years long when some of our nation’s greatest lawyers, such as Abraham Lincoln and John Marshall, only received very limited instruction in the law? Why don’t law schools have opportunities for distance learning? Good questions indeed.

Let me concede that there are some people out there who would make excellent lawyers without ever going to law school. There are also probably some people out there who would make excellent doctors without going to medical school—but I don’t want them operating on me. Such superstars are the exception, not the rule. I myself benefited enormously from law school—from the culture of law it instilled in me, from the debates, from the opportunity to learn about the law in depth from both a modern, practical point of view and from a more historical or jurisprudential one. You simply do not get that by taking the bar. Or reading a book.

But what about distance learning? (Again, check out the comments to my previous post.) Should we do that? Based on my experience as a law professor, I believe there is enormous benefit to live, in-class discussion. Distance learning hinders that. But again, it is a matter of balance. Many law schools have night divisions that do not interact with the day divisions—and this does not bother those schools! So if we are willing to compromise this dynamic in one aspect, I think we should compromise it in another and allow distance learning, under certain conditions. In fact, I would not be surprised to see this happen in the next 5 years. After all, law schools are supposed to be engaged in public service. And enabling qualified people to obtain JDs and pass the bar is public service.

But back to the main point: should there even be law schools? Like any institutions, law schools are not perfect. But it is my experience in teaching—and in practice—that they are necessary, despite their faults. My reasoning comes down to this. American high schools should be teaching students to write, research and think. Yet many high school graduates do a poor job of all three, in opinion. And many college graduates, for that matter. These are not stupid people, mind you. To the contrary, many are extremely bright. They just haven’t been taught properly. We live in a society that values action over reflection, success over education, and it shows in our educational system.

So what that means is that law schools, for better or worse, are sometimes the last bastions of formal education for people before they become lawyers. That is a critically important role to play. And that, in a nutshell, is why I gave up my life of comparative wealth and luxury in private practice for a life in teaching in a place far away from friends and family.

Any other comments on this are welcome. The proper role of law schools is one of the most difficult, and most important, questions that law schools face. And we should be working hard to craft the best answer possible and make sure that law schools are not just barriers to entry. That means the more dialogue, the better.