29 May 2014

The Case For Law As An Undergraduate Degree

A post at the Legal Watchdog blog discusses at length the possibility of making law school a two year undergraduate program, rather than a three year graduate degree with no prerequisites and sometimes lax law school admissions standards for people who want to have a prayer of passing the bar exam, that follows a four year undergraduate degree.

For what it's worth, I would really favor a slightly less radical four year undergraduate degree path to a pre-professional law degree modeled on an engineering or bachelor of science program, rather than a bachelor of arts undergraduate degree.  This would contain two to three years of pre-professional law degree classes and another one to two years of general education classes which almost all current lawyers with bachelor's degrees, regardless of major field of study, take now before earning a bachelor's degree and starting law school.

Rather than restate the Legal Watchdog blog post's points, I'll raise three additional arguments in favor of this conversion that aren't stated as decisively as I would like.

The Feminist Argument For Undergraduate Legal Education

Women make up 60% of law school graduates, appropriately because there are significantly more women than men who are extremely high performing in verbal and writing ability pertinent to the practice of law (Wai 2010).  But only about 17% of equity partners in large law firms are women (citing Wittenberg-Cox 2014). The percentage of women at each intermediate step in the large law firm lawyer career path declines.  Women have made up about 45% or more of law school graduates for more than thirty years, so the pipeline arguments are exhausted.

The reason for this is really not a mystery.  Men who marry and have children who work at large law firms and have what it takes to advance on that career ladder continue to devote "Big Job" class time commitments of sixty hours a week or more to their jobs.  Women who marry and have children who work at large law firms and are capable of doing the work necessary to advance on that career ladder take time off for a number of years while they have young children if they can and pay a punishing economic price for doing so for the remainder of their careers and in terms of job advancement.

In the ordinary seven years of higher education needed to obtain a law degree, a typical newly admitted to the bar attorney is 25 or 26 years old.  Women who have kids before completing graduate school are much more likely not to earn their degrees at all and almost never get into the large law firm career track.  Further, the creme of the crop of law school graduates who go onto be partners at large law firms, are also often expected to spend a year or two as judicial branch law clerks prior to entering private law firm associates as a sort of final on the job training process for the best and the brightest that provides insights in future trial practice.

Promotion at a large law firm from associate attorneys to "of counsel" or "non-equity partner", which are the next steps up in the large law firm career ladder, typically takes seven to eight years as an associate and then "senior associate" attorney in that firm working sixty to eighty hours a week.  This puts a would be non-equity partner in a law firm at 32 to 35 years old.

A woman's biological clock makes it optimal for her to have children in her twenties or early thirties, after which fertility rates start to decline (see also Wikipedia) and adverse outcomes like birth defects grow progressively more common.  Throw in negative effects associated with a father of advanced paternal age and the fact that professional women tend to marry professional men similar in age or a bit older.

It is almost impossible to commit the relentless long hours necessary to be on partner track at a large law firm to an associate attorney's job if you are pregnant and then give birth to a couple of kids spaced a few years apart.  This is particularly true if you want to breast feed for at least the medically recommended lengths of time (about twelve months) and to not wish to feel like you are being a terrible mother.

Taking six months to a few years off immediately after being promoted to "Of Counsel" or "Non-equity partner" is likewise not a recipe for keeping your job in a large law firm, not matter what your reasons may be.

This leaves a woman who wants to have children without fertility treatments and other biological clock problems by having children before reaching advanced material age who is otherwise perfect law partner material with a window of three years or less to have kids while still securely reaching the penultimate step in the career ladder as "non-equity partner", which is pretty much the lowest perch from which you can return to the firm after an extended leave of absence and have any hope of ever becoming an equity partner in a large law firm.

Indeed, many women with an aptitude for law become paralegals or legal secretaries rather than lawyers because the earlier start is friendlier to their aspirations and desires to be parents at a reasonably young age while still having time to establish a meaningful career that they can return to without undue penalty once all of their children are ready to go to preschool.

Making law and undergraduate degree and disregarding the tradition of judicial clerkships for top law school grads seeking to become partners in private law firms turns a zero to three year window into a four or five year window, and maybe even a six year window to have children while having some hope of eventually becoming a partner if a woman takes enough AP classes, IB exams, and local college courses while in high school to finish an undergraduate degree in three years rather than four  Indeed, the addition three to five years in this window also makes it much more feasible for women who want to have children to make it all of the way to equity partner in a law firm before doing so.  And, holding onto the economic rewards of your career following an interruption in your working life for a few years is much easier for someone who has attained the status of equity partner than it is for anyone with a less senior position in a law firm.

If the biological clock theory advanced here is correct, it is fair to estimate that a shift of legal education from a graduate degree to an undergraduate degree would roughly double the number of women who become equity partners in large law firms.

The Gender Difference Feminism Case For Allowing Women But Not Men To Take Undergraduate Pre-Professional Law Degree Programs

If you are willing to look at the psychology literature on gender differences, and abandon the credo that education and employment should be entirely gender blind, there is even an argument that undergraduate law degrees should be made available to women, even if they are not available to men.

The argument here is that first, in a balancing analysis, women face much more demanding biological clocks on their child rearing than men, so compromising undergraduate general education is more justified in their case than for men.

Then, consider these data points.  The psychological case that women and men differ in peak adult intellectual, cognitive and behavioral aptitudes overall is controversial and quite weak (Halpern 2012 at 34).  But, the developmental psychology literature firmly establishes women reach their peaks on average at a younger age than men in social maturity (Cohn 1991), and in cognitive skills such as verbal skills and reasoning skills (Gur et al. 2012) which are critical to the practice of law.  Psychological studies similarly tend to show that women make mature decisions about their careers in life at a younger age (Patton and Creed 2001Luzzo 1995). (See also, e.g. Bramen, et al. 2011 and Bramen et al. 2012, looking at comparative brain tissue development by age and gender).

Arguably, the main reason to make law a graduate degree rather than an undergraduate degree, which is a decision that was largely made prior to the early 1970s when more than 95% of law students were men, is that it is best to defer pre-professional legal education until students have reached peak adult levels of social maturity, verbal skills and reasoning skills, which happens later in life for men than it does for women, and doesn't have to be balanced against other compelling reasons to start earlier.

There is also a fair amount of educational psychology research to suggest that single sex education is particularly beneficial to women in discussion oriented classes like many classes taught in law school.

Thus, there is a decent argument from the psychology literature and from work-family balance considerations that it would make sense for women to earn undergraduate law degrees, while men would continue to follow the current norm of earning pre-professional law degrees only after earning an undergraduate degree while they are still maturing cognitively and behaviorally.

The Economic Equity Argument

There is overwhelming empirical evidence to show that the cost of higher education results in much lower levels of college attendance and completion for poor students with given test scores and grades, than for more affluent students.  The most academically talented poor students are only about as likely to earn a college degree as the least academically talented affluent student.

Cutting three years and about $150,000+ of education costs (in the form of student loan debt for most poor, working class, and middle class law students) off the investment in human capital necessary to become an attorney dramatically expands access to the profession for students from less affluent families.

Put another way, given a choice between a 26 year old associate attorney applicant with one year of experience, and one with four years of experience, almost all employers would find the latter more valuable, and the change would make the lifetime earnings of all attorneys' net of education costs substantially higher.

In another related point, lower levels of student debt make it more viable for law school graduates to pursue governmental or public interest law careers out of law school, rather than being debt driven to pursue the position with the highest possible starting salary.

The Comparative Argument

The United States is exceptional in making a pre-professional law degree a graduate degree rather than an undergraduate degree.  Almost every other country in the world that has higher education requirements for becoming lawyers, in countries in the English common law tradition and in countries with the European civil law tradition alike, make a law degree an undergraduate degree.

This is solid evidence that there would be few if any detrimental effects to making a law degree in the United States and undergraduate degree rather than a graduate degree.  There is really nothing radical about making legal education an undergraduate enterprise except for institutional inertia.

A Footnote Related To Legal Education In Less Developed Economies

Even with both a typically four year bachelor's degree and a three year professional degree as well as a bar exam as pre-requisites, the American economy manages to have enough resources to provide a legal education to almost every law school applicant who is capable of passing a state bar exam and is astute enough in applying to safety schools to apply to a school with sufficiently lenient admission law school admission standards.  (Of course, admissions standards at some law schools are even lower if you are politically connected).

Likewise, very low levels of full time law degree required employment for recent law school graduates (particularly those with relative poor academic credentials at less prestigious law schools), unprecedented associate attorney layoffs during the financial crisis that are still continuing at low levels into 2014 (also here perhaps with actually quite significant layoffs in 2014) low pay for significant subsets of entry level lawyers (e.g. Massachusetts deputy district attorneys make on average less per year than court house janitors and public defenders there (who on average have more experience) make only slightly more), all tend to support the conclusion that the higher education system is not under-producing new lawyers at the margins in the United States.

In most less developed economies, this is not the case.

High school graduates are rare and college graduates are even more scarce, while many people in these countries are not just functionally illiterate in the official language of the country, but are totally illiterate in their native language.

In these circumstances, allowing people to enter the full fledged practice of law with a year or two of post-secondary training in law, may make a great deal of sense.  It is better to have a sufficient cadre of lawyers with some formal legal training to administer of functional legal system, than to have a much smaller cadre of lawyers trained to developed country standards whose numbers of completely inadequate to operate a functioning legal system.  The former may have more mistakes of law than would be optimal, but the latter will be effectively a system with lawless anarchy because the system can't handle the demands it needs to serve.

Also, in a less developed economy setting, it is probably more sensible to categorically limit the jurisdiction of courts that conduct Western style legal proceedings to a subset of the total judicial system docket that the available supply of lawyers can manage and to choose the cases for the subset of the total that are most critical to have handled by well trained legal professionals (e.g. serious felonies and real estate disputes), while reserving minor cases of the sort handled in courts of limited jurisdiction in the United States (e.g. misdemeanors and minor debt collection and residential eviction cases) to traditional dispute resolution processes or lay adjudication of some other type.

It may also make sense, if the supply of formally trained lawyers is small, to deploy the lion's share of formally trained lawyers as judges to maximize the accuracy of ultimate decision making based upon the cases presented to them, and to dispense with any formal licensing process for people assisting litigants in this process.

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