Scalia v. Posner (& Obama), Round XXIV – Nino “Vigorously Dissents” From 2-Years of Law School

May 16th, 2014

The saga continues. During his commencement address at William & Mary, Justice Scalia offered “Reflections on the Future of the Legal Academy.” And he managed to get a shot in at Judge Posner, and President Obama!

But then, in 1911, the New York Court of Appeals changed the rule to three years—which remains the rule today in almost all jurisdictions. But, now and again, it has been a source of controversy. In the 1970s prominent educators from President Derek C. Bok of Harvard University to President Edward H. Levi of the University of Chicago said publicly that switching to two years was at least worth a try.2 Then in 1999 Judge Richard Posner embraced the idea.3 As did the President of the United States just last year, saying that third-year students would be “better off clerking or practicing in a firm.”4 Finally, joining the chorus—and this was a surprise, at least to me—was the American Bar Association’s Task Force on the Future of Legal Education, which suggested in January of this year that “bar admitting authorities could create paths to licensure with fewer hours than the [current] Standards require by devices such as: (1) accepting applicants who . . . have fewer hours of law-school training than the Standards require; or (2) accepting applicants with two-years of law school credits plus a year of carefully-structured skills-based experience, inside a law school or elsewhere.”5

I vigorously dissent. It seems to me that the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession—- the profession of law.


Scalia makes a number of valid points about what it means to be a lawyer, rather than something approaching “lawyer-lite.”

One can practice various aspects of law without knowing much about the whole field. I expect that someone could be taught to be an expert real- estate conveyancer in six weeks, or a tax advisor in six months. And maybe we should train such people—but we should not call them lawyers. Just as someone might become expert in hand surgery without knowing much about the rest of the human body, so also one can become expert in various segments of the law without knowing much about the rest. We should call the former a hand surgeon rather than a doctor; and the latter a real-estate conveyancer, or H&R Block—but not a lawyer. Those of you who have walked the streets of Paris may have noticed (as I have) signs here and there—“Jurisconsult,” for example—advertising the services of people who give legal advice but are not avocats (lawyers). I am not even sure whether one must pass an exam or have any special training to work in such a capacity.

None of you who are being graduated today is being certified an expert in patent or employment law. You are instead receiving degrees that attest to your successful completion of a sustained three-year study of law. The mastery of that subject is what turns the student into a legal professional.

Scalia laid some of the blame on law faculties. A friend who attended the ceremony said the professors sitting behind Scalia were getting somewhat uncomfortable with these remarks:

The law schools themselves are partly to blame for the belief that all the law you really need to know can be acquired in two years. For starters, they increasingly abstain from saying there is anything you really need to know. ….

t is something of an open secret now that the second and third years of school offer a student the chance to study whatever strikes his or her fancy—so long as there is a professor who has the same fancy. It is also well known that many of the courses from which the student may choose have a distinct non-legal flavor, to say the least: from “Effective and Sustainable Law Practice: the Meditative Perspective” and “Elegance in Legal Thought and Expression” at Berkeley Law School, to “The Philosophical Reinvention of Christianity” at Harvard, to “Contemporary Virtue Ethics” at Chicago. Even the traditional first-year courses—torts, contracts, and the like—seem to be going out of style. Many schools now offer first-year students one or two “electives” to spice things up a bit. At Northwestern University School of Law, for example, 1Ls may choose two elective courses among options that include “Law and Psychology,” “Narrative Structures,” and—I’m not making this up—a class called “Large Law Firms.” At the University of Michigan Law School, a 1L may take a class called “Innocent Defendants.” (There appears to be no companion course on “Guilty Defendants.”) Georgetown University Law Center has made the bread-and-butter first-year courses entirely optional. The incoming student may choose “Curriculum A,” which is the set of traditional first-year courses, or “Curriculum B,” which includes courses such as “Bargain, Exchange, and Liability,” “Legal Process and Society,” and “Property in Time.”

It’s probably not too difficult to figure out who teaches those classes. And to really piss them off, Scalia cites Paul Campos three times, and Brian Tamanaha twice.

But if law school is to remain three years, costs have to be cut; the system is not sustainable in its present form. The graduation into a shrunken legal sector of students with hundreds of thousands of dollars of student debt, nondischargeable in bankruptcy, cannot continue. Perhaps—just perhaps—the more prestigious law schools (and I include William and Mary among them) can continue the way they are, though that is not certain. But the vast majority of law schools will have to lower tuition. That probably means smaller law-school faculties—though not necessarily one-third smaller. That would be no huge disaster. Harvard Law School, in the year I graduated, had a faculty of 56 professors, 9 teaching fellows, and 4 lecturers; it now has a faculty of 119 professors, 53 visiting professors, and 115 lecturers in law. A total of 69 then and 287 now.13 And cutting back on law-school tuition surely means higher teaching loads. That also would not be the end of the world. When I got out of law school, the average teaching load was almost 8 hours per week.14 Currently it is about half that.15 And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world. To use Harvard again as an example: Faculty salaries have much more than doubled in real terms since 1969.16

But to return to my main point: Since the modern legal academy appears not to believe that there is a solid and significant core of courses that entitle someone to be admitted to the profession of law, it is small wonder that there are calls for shortening law school to two years. If and when that happens, the shrunken faculties will have only themselves to blame. But for the moment, for you graduating students who have had what I consider not the luxury but the necessity of soaking in the law for three full years, and for the parents who have paid for that experience, welcome to the ranks of—not tradesmen, but men and women learned in the law.

Not that Justice Scalia needed any more love from the darlings of the Professoriate.