Legal Commentary

Walter Kirn today endorses a Utah state senator?s proposal to do away with the senior year of high school.  The proposal?s strong form met with such public resistance that it?s already been watered down ? an optional senior year, a get out of jail free card, for the interested.  Kirn?s piece reminds us of what we all already accept deep down ? the senior year is, academically speaking, a waste of time. 

Which has got me thinking about the third year of law school.  For those who seek it, the third year offers plenty:  a chance to dig deep into a subject area, an opportunity to broaden one?s legal training through interdisciplinary work or clinical experiences.  But the truth is that Dazed and Confused (one of the films Kirn points to as evidence of our cultural acceptance of the senior year as one of nonacademic debauchery) could have been about 3Ls.  Most are biding time before they start pulling down big salaries, or doing the public service work they came to law school to do, or beginning their post-bar-passage job searches in earnest.   The signs are easy to spot.  3Ls make it to class much less often than they once did.  When they do show up, chances are as good as not that they haven?t done the reading.   We all know this ? it?s why we hate to teach big classes full of 3Ls.  Dead air.  Our anecdotal experience is matched by the evidence.  A number of years ago Mitu Gulati looked at the arguments in favor of abolishing the third year of law school.  His findings were almost comical, as his efforts to gather data on the 3L experience were repeatedly thwarted by an inability to find any 3Ls on campus to talk to.  When he  finally did scrounge up enough third-year students to survey (at 11 schools across the ranking spectrum) he found that many third years went to only about 60% of their large classes, and when they did go to class, more than half of them said that they prepared only half, or less than half, of the time.  Mitu Gulati et al., The Happy Charade: An Empirical Examination of the Third Year of Law School, 52 J. Legal Educ. 235 (2001).

And it?s not just class.  By the time their third year rolls around student leaders and most journal editors have handed over the reins to 2Ls ? leaving their hands free for paid part-time work, or community involvement, or maybe just another margarita. 

So, ought we go the way of Utah?   Move graduation up to coincide with the point at which law students feel, intellectually and emotionally, that they?ve had enough? Abolish the third year?  Of course law schools? financial incentives are more than a little different than Utah?s.  According to Utah State Senator Chris Buttars, his plan to make senior year optional could save Utah as much as $60 million.   Whereas law students pay tuition, and a lot of it.   And while tuition is but one source of funding, the loss of an entire year?s worth of it for each and every law student would be a significant cost to law schools (and their home universities) .  Yes, two-year law schools would have fewer classes to staff, and require fewer student services.  But who are we kidding.  The math does not come out in the law schools? favor.  Faculty sizes would need to shrink significantly, and it is hard to imagine faculties (or any group of people in any workforce) choosing to eliminate a third of their jobs.

How, then, do we make the third year of law school meaningful and relevant to the majority of our students?  Many current proposals involve more clinics, more experiential opportunities ? making law school look more like medical school.  For a variety of reasons, largely centered around staffing and funding, I am not convinced that legal education is ready to move to the medical school model.    There is much more to say here (and yes, of course, that means I am working on a piece on just these subjects), but I am getting ahead of myself.  The right place for the conversation to begin, it seems, is with the problem.  The do-next-to-nothing third year is indeed a problem.  If we hope to change it (and I grant that it?s a decent-sized if), we need to have a better sense of just how much nothing third years do, and why they do it. 

Kristen Holmquist is Academic Support Programs Director and Lecturer in Residene at UC Berkeley Law