Is Law School Outdated?

Published: Sep 19, 2022

Topics: Education       Grad School       Law       

What do Supreme Court Justice Neil Gorsuch and Former President Barack Obama have in common? Both have suggested the traditional law school format may be outdated. Obama, in 2013, suggested that law school should be reduced to two years, and that the third year should be spent gaining experience.[1] More recently, Justice Gorsuch suggested that the length and cost of law school prevents lawyers from seeking out public service jobs since those salaries don’t cover the cost of law school. [2] There has been a lot of debate about whether law school, in its current form, is the best approach to training future practitioners. This post will look at some of the controversies.

In the early days of American law, most would-be lawyers learned the trade through self-study and apprenticeships. The first dedicated law school was formed in the late 1700s by Judge Tapping Reeve in Connecticut.[3] In the late 1800s, Harvard, Yale, and Columbia started law programs, and the American Bar Association (ABA) was formed. The ABA encouraged states to require lawyers to study at higher educational institutions instead of following the apprenticeship model. By the early 1900s, it was settled that becoming a lawyer required three years of legal study at a law school or institute of higher education. This shift, from the practical to the theoretical, is still the model used today. The Socratic method, first used in the study of law by Harvard Dean Christopher Columbus Langdell in 1870, continues to be the norm in first year law school classes. This pedagogical technique is used to teach students to think, speak, and analyze like lawyers. But is it the best method? Some argue that the Socratic method is a good way for professors, many of whom are without practical legal experience, to teach the law. Others argue that the technique is detrimental to minorities and women, and that it can cause anxiety and depression in students. Law schools continuously warn students about the risk the profession poses to their mental health, and then proceed to use a pedagogical technique that potentially induces harm. The question remains—while the Socratic method has been used for over a century to train students to think and speak like lawyers, is it the best way?

Another debate in the current law school landscape centers on access. We recently wrote about the LSAT and its uncertain future, noting several issues with the standardized test.[4] Requiring the LSAT can exclude diverse law school candidates due to the cost and the preparation necessary to take the exam, among other issues. Further, many scholarship opportunities are based upon LSAT score (and GPA), ignoring the need of the student for that scholarship. One argument is that there should be more focus on need over achievement when awarding scholarship dollars or tuition credits. The legal industry needs diversification, and many clients are demanding representation that looks like them. If law schools do not look at this demand, they could be missing out on successful students and future donors to the institution. Law school admissions could benefit from an overhaul in their admissions processes to effectuate diversity.

For those who are admitted to law school, many are facing crippling debt at the end of their education. Much ink has been spilled on this topic, but no one denies that the cost of a legal education is out of step with inflation.[5] The cost of law school potentially bars those who would otherwise make excellent lawyers from attending. And those who do attend may be drawn away from public interest work and small firms due to the excessive cost of loan repayment. While there are programs to assist with debt post-graduation, they are politically motivated, and could disappear based upon the whims of politicians. Law schools need to find ways to offset the cost of tuition or offer better opportunities to assist lawyers who want to go into a service-based practice. Tapping into endowments could be one answer. The consensus is that more assistance (not loans) is necessary to keep law schools competitive, and to keep graduates from drowning in law school debt.

Are law schools preparing future lawyers for practice? Those who argue that new lawyers are not being prepared to actually practice law are not necessarily wrong, although they went through the same training as the newbies and managed to be successful. Part of the problem could lie with law professors. Most law school professors are expected to engage in legal scholarship, not legal work. This scholarship is rarely related to practical legal matters, and is more often an exercise in theory and philosophy. Some critics suggest law professors should be admitted to at least one state bar and have some real practice experience. Another perceived problem is a new graduate’s lack of real-world experience coming out of law school. There is some discussion about making law school more like medical school—requiring post-graduate training or rotations before certification. It is no secret that some schools fall short on emphasizing student participation in clinics or pro bono work, while others make practical experience a requirement for graduation. For example, Northeastern School of Law boasts that 100% of JD candidates who graduate have almost a year’s worth of legal experience, and there are many other institutions that emphasize practical experiences. Perhaps a more unilateral approach by law schools to emphasize significant hands-on legal experience would appease the critics.

While many other educational institutions are criticized for “teaching to the test,” law students simply accept that, in addition to inadequately preparing them for practice, law school doesn’t even prepare them for the bar exam. This failure is so widely accepted that it is taken as a given that virtually every student will, upon completion of their JD, pay for and complete an entirely separate bar course in order to prepare for and pass the bar exam. Both the prep courses and the exam itself may be obsolete as well (watch for a future post going more in-depth on this), but for the topic at hand it is sufficient to say that law school doesn’t even prepare students to pass the bar.

Overall, while law school has been around for hundreds of years, many things aren’t working, and the institution is in need of updates. Doing things because that’s the way they’ve always been done is a great way for institutions to stagnate and ultimately fail. Institutions, their students, and legal practitioners must willing to continually monitor and assess what does and doesn’t work—and, crucially, they must be willing to make changes when breaks are found.

[1] Flaherty, C. (August 26, 2013). 2 Years for Law School? Inside Higher Ed

https://www.insidehighered.com/news/2013/08/26/president-obama-calls-cutting-year-law-school

[2] Rubino, K. (September 9, 2022). Neil Gorsuch Picks a Fight with Law Schools. Above the Law

https://abovethelaw.com/2022/09/neil-gorsuch-picks-a-fight-with-law-schools/

[3] Howe, E. (March 30, 2021). The Litchfield Law School, Connecticut’s First Law School. Connecticut History.

https://connecticuthistory.org/the-litchfield-law-school-connecticuts-first-law-school/

[4] Horvath, P. (August 24, 2022). Should Law Schools Keep the LSAT? Vault.

https://firsthand.co/blogs/vaults-law-blog-legal-careers-and-industry-news/should-law-schools-keep-the-lsat

[5]Law School Transparency. https://www.lawschooltransparency.com/trends/costs/tuition#:~:text=Inflation%20has%20been%20a%20factor,was%20%2449%2C312%20(2019%20dollars).

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