The case for the alternative third-year program.

• Author: Cunniffe, Christopher

Today, a law student seeking admission to the bar in the vast majority of American jurisdictions must not only train in the law for three years (duration requirement), but must train for all three of those years under the guidance and supervision of a professional class of legal educators within the halls of a law school approved by the American Bar Association (location requirement). The location requirement is a relatively modern invention. As late as 1927, no jurisdiction in the United States required any period of study in a law school as a prerequisite for admission to the bar.(1) The limited objective of this paper is to challenge the legitimacy of the location requirement as applied to the third year of legal training (third-year location requirement).

There has never been a persuasive justification for uniformly requiring all law students, regardless of their particular professional aspirations, to spend their third year of legal training within a law school. Today, perhaps more than ever before, there are compelling reasons for states to consider adopting flexible alternatives to the third-year location requirement. Upon analysis, the traditional arguments for the requirement have little persuasive force.(2) Furthermore, the requirement imposes unacceptable costs upon consumers of legal services as well as law students. For many students, the marginal educational benefits of a third year of formal academic training are heavily outweighed by the substantial costs, which include not only rapidly rising tuition expenses, but also foregone income. Moreover, the requirement prevents students from using their third year to pursue legal externships, a valuable alternative mode of legal training.

For organizational purposes, this Article has been divided into three parts. Part I briefly discusses the evolution of the location and duration requirements that currently prevail in most states and the justifications that were, and continue to be, offered on their behalf. Part I also summarizes the largely unsuccessful intellectual and political efforts that have been made in the past to reform these requirements. Part II offers several rationales for the repeal of the third-year location requirement and argues that, particularly in the context of the modern legal profession, the traditional justifications for the requirement are unconvincing. Part III outlines a concrete proposal to reform the third-year location requirement. Part III also discusses issues related to implementing the reform. Part IV concludes that, instead of continuing to defer to the judgment of the American Bar Association (ABA), the states should directly regulate the required duration and location of legal training. While recommending that states retain the three-year duration requirement, the Article argues that states should allow students to fulfill this obligation either by completing a traditional three-year academic program at an approved law school, or by completing two years of formal academic training at an approved law school followed by what the Article terms an "alternative third-year program." While this proposal relies primarily upon changes in state law, efforts also should be directed toward pursuing supplementary reform within the ABA.

The basic idea behind this reform proposal is by no means novel. It is, in fact, nothing more than a modernized embodiment of what, in 1876, Lewis L. Delafield, then president of the American Social Science Association (the organization which gave birth to the American Bar Association(3)), referred to as "`[t]he best system, [a system in which bar applicants] learn the principles of the law in a school, then apply them for at least a year in an office, and finally pass a public examination by impartial examiners appointed by the courts.'"(4)

1. The Evolution of the ABA's Duration and Location Requirements and Some

   Dissenting Views

   This part briefly explores the origins of what is now the dominant rule in the United States: a law student is required not only to train in the law for three years, but to spend all three of those years within the halls of an ABA-approved law school. I will focus here on two key historical events, namely, the issuance of the Root Report in 1921, and the promulgation of the modern ABA Standards for the Approval of Law Schools in 1973. A more complete history of the rise of formal academic schooling in the training of American legal professionals has been well documented by others.(5)

   In 1921, an ABA committee chaired by Elihu Root issued an influential report recommending that the states adopt minimum law school standards, including a standard demanding that law schools require full-time students to pursue a three-year course.(6) The Article outlines several of the arguments which the Root Committee offered in support of the imposition of such standards. Later in this analysis, the Article questions the persuasive force of these arguments, particularly in the context of the modern legal profession.(7)

   A principal theme of the Root Report was the need to protect the public from incompetent and unscrupulous lawyers. The Report lamented that for most citizens, "[wlhether [they are] served honestly or dishonestly, competently or incompetently, is to a considerable degree a matter of chance."(8) In addition to protecting the public, the report sought to protect the legal profession, the reputation of which was suffering due to "the sins of a minority."(9)

   The Root Report offered several justifications for not permitting any of the required three years of legal training to take place in a law office. The Report cited the "rapidly widening field of human relations," which created a body of legal knowledge far too broad to be taught effectively in a law office.(10) The Report argued that practical skills were best taught by the law schools, and cited the "good results" that had been obtained by those law schools which had exposed their students to legal aid society work.(11) As to the duration requirement, the Report produced the following broad statement:

   The process of assimilation and of mental growth must be

   orderly and comparatively slow. Experience has shown that

   a student who gives substantially all of his working time to

   his studies should devote at least three years to his legal

   education. And even three years is scarcely enough, so great

   have the bulk and complexity of American law become. A

   three years full-time course, then, is the desideratum.(12)

   A critical notion underlying the Root Committee's call for uniform standards across the nation, including the third-year location requirement, was the idea that all lawyers should be subject to the same training. This idea is closely aligned with the concept of a unitary bar, in which all admitted lawyers are trained as generalists capable of handling any legal issue. The legitimacy of this concept is not only highly contested today, but was also debated vigorously in 1921.(13) In the same year that the Root Report was released, Alfred Z. Reed published Training for the Public Profession of the Law, a seminal work on the legal profession which explicitly rejected the notion of a unitary bar.(14) Reed concluded that a unitary bar could not be achieved and recommended that the bar be formally divided along functional lines.(15) Although Reed is not explicitly mentioned in the Root Report, several paragraphs are clearly aimed at his conclusions.(16) The Report responded directly to "the suggestion that there must be different kinds of training to produce different kinds of lawyers."(17) The Report disagreed with this position, stating that "[i]n spite of the diversity of human relations with respect to which the work of lawyers is done, the intellectual requisites are in all cases substantially the same."(18) The Report further asserted that the work of a probate lawyer and the work of an admiralty lawyer were not "fundamentally different" because each required "high moral character and substantially the same intellectual preparation."(19) As a consequence, "all who intend to practise [sicl law should receive a training in accordance with certain prescribed and uniform standards."(20) The debate here between Reed and the Root Committee is central to crafting an appropriate system of legal training and will be taken up at greater length later in this analysis.(21) Some authors have explained the bar's desire in the early part of this century to raise educational standards by reference to motives that were less public-spirited than those mentioned above.(22) Stevens has attributed the movement to "a confusing mixture of public interest, economic opportunism . . . ethnic prejudice," and "the `culture of professionalism.'"(23)

   The basic framework of the modern ABA Standards for the Approval of Law Schools was first adopted in 1973.(24) While the 1973 revision retained the duration and location requirements, the requirements survived intact only after fending off a flurry of attacks by leaders in the academic community, leaders of the organized bar, and the Chief Justice of the United States Supreme Court.(25) In 1968, Charles J. Myers, then chairman of the Committee on Curriculum of the American Association of Law Schools (AALS), authored a highly critical report which argued that legal education was "too rigid, too uniform, too narrow, too repetitious and too long."(26) In the course of his report, Myers offered the following "[P]rescription[]":

   There should be substantial variations in the course of

   study and the requirements for graduation, depending on the

   career aims of the student. A student who wants to enter the

   general practice as soon as possible, should be permitted to

   graduate after two years of study . . . . Students with

   specialized interests . . . should have available to them

   combined degree programs of three to four years . . . in the

   area of specialization.(27)

   Meyers also argued for expanding...