Washington Post
(September 6, 2013)
Why Legal
Education Should Last for Three Years
By Bruce
Ackerman
at
President Obama was
dead wrong last month in suggesting that law
school educations should be only two years. The third year is not an
expensive frill but a crucial resource in training lawyers for 21st-century
challenges.
U.S. law is in the
midst of an intellectual revolution. Supreme Court Justice Oliver Wendell
Holmes saw it coming more than a century ago: “For the rational study of
the law the blackletter man [who focuses on existing legal rules] may be
the man of the present, but the man of the future is the man of statistics and
the master of economics.”
Holmes’s future is
our present. Today’s law school casebooks highlight opinions that display new
patterns of legal argument based on economics and statistics as well as
psychology and other social sciences. These pathbreaking decisions are written
by judges of different political persuasions — liberals such as Stephen Breyer
and Guido Calabresi and conservatives such as Frank Easterbrook and Richard
Posner. They do not represent a passing political fad but are a central
tendency of modern law.
If students are to
engage with these opinions, they can’t merely repeat the black-letter rules
announced by judges. They must confront fundamental issues: When do free
markets fail the test of economic efficiency? When should efficiency be trumped
by justice? When do impressive-looking statistics amount to fancy ways of
lying?
Law schools already
are taking these questions seriously. Yale, for example, offers courses on the
use and abuse of statistics, the implications of behavioral and financial
economics for regulation, the significance of social psychology in the criminal
justice system, the potential of political science in designing better
decision-making institutions and the ways different contemporary theories of
justice constrain the use of cost-benefit analysis. These discussions combine
theory with concrete examples and provide a context for similar themes when
they are encountered in more doctrinal courses. Cutting back to two years of
study will put an end to these evolving trends and effectively push legal
education back more than 75 years.
If Obama’s
“cost-cutting” measure were adopted, it would impoverish American public life.
Once two-year graduates move into practice, they won’t be able to deal
adequately with bread-and-butter issues of antitrust, intellectual property or
corporate law, let alone with the challenges of civil rights or environmental
law.
It is frivolous to
suppose that these lawyers would pick up the key skills on the job. Social
science and statistics require systematic training, not a crash course in
response to particular problems.
The predictable
outcome will be massive professional retreat. Increasingly, lawyers will become
secondary figures who prepare the way for “experts” to present the crucial
arguments before administrative agencies, courts and legislatures.
Decision-makers with two-year law degrees will proceed to rubber-stamp the
expert testimony that seems most impressive because they aren’t prepared to
test it in a serious way.
In contrast, if law
schools redeem the promise of a three-year curriculum, their graduates will
have something valuable to contribute to the larger conversation. They will
never rival experts in their command of statistics and social science, but so
long as they understand the basics they will be in a position to integrate
technical insights into a broader understanding of the fundamental values of
the American legal tradition.
Rigorous PhD programs
in economics or statistics — or even political science or public policy —
increasingly focus on formal models and big data, pushing the lawyer’s emphasis
on concrete problem-solving to the periphery. There is a big question, then,
concealed by Obama’s modest proposal: Should the future of U.S. law be shaped
through a conversation between lawyers and technocrats, or should it be
dominated by technocrats alone?
Obama’s answer is
surprising, given some of his personnel choices. In naming Cass
Sunstein the chief White House official to guide his administration’s
regulatory policies, Obama selected a preeminent spokesman for an integrated
approach to law and social science. After Sunstein came Howard
Shelanski — another bridge figure who complements his doctorate in
economics with a law degree that introduced him to the complexity of the
evolving tradition. This sensibility will be lost if a truncated curriculum
satisfies itself with black-letter law.
Developments in
Washington and the federal courts are only indicators of a general movement
throughout the country. If courts and legislatures are to confront
“stop-and-frisk” laws or No Child Left Behind legislation, it is imperative for
them to deal with big data. But will they also root their response in a
thoughtful understanding of legal principles?
We have come a long
way since Alexis de Tocqueville emphasized how American lawyers dominated
lawmaking in the 19th century. The days of lawyerly monopoly have passed, but
modern law schools can help sustain the distinctive values of the legal
tradition in a different world. It would be tragic if short-term
cost-cutting makes it impossible to succeed in this long-term project.
Bruce Ackerman is a
professor of law and political science at Yale University.
