Obama Versus Martha Nussbaum: Law School in 3 Years, or 2?

by Mary Richter Aug 29, 2013

Last week, Obama surprised everyone a little by explicitly agreeing with those who have argued for years now that law school should be two years instead of three. The President and Harvard Law grad is in good company, including Samuel Estreicher at NYU Law, who has been a vocal advocate for the expendable third year. Law School Transparency’s suggested new models for legal education reform draw heavily on the same idea of trimming length to save costs.

Indeed, criticism of Obama for making the controversial (or not?) statement seemed to come from one direction: not from people who disagreed with him that law school should be shorter, but from those who thought he didn’t go far enough: instead of “talking” about changing the structure of legal education he should actually “do something.” And why not go further and make law school one year like the Brits? It all left me wondering–is stripping the third year so widely accepted now that it’s not controversial at all? Is there anyone arguing in favor of it?

I went in search of third year supporters. And guess who is one. Martha Nussbaum–University of Chicago Law professor and one of the most renowned legal scholars on the planet. Nussbaum and Charles Wolf, also from Chicago, argue essentially that such reforms risk making bad lawyers:

Electives typically are taken in the second and third years. Given the general courses that an accredited legal education must include, dropping the third year offers no time for interdisciplinary electives. The new wisdom is that this would be no loss … But lawyers who join firms also need to understand how society works if they aspire to be independent thoughtful leaders of their chosen profession, rather than passive followers of custom. In the life of the firm, a deferential model of lawyering (doing it because that is how it has been done) will further erode professional standards.

I’m not persuaded. The argument assumes that somehow the third year of law school is where one learns to become “independent” and “thoughtful” rather than “passive.” To me, these are the kinds of qualities that are instilled over time through interactions with teachers who teach these qualities through and in spite of whatever substantive material is being transmitted; there’s no reason one cannot learn from a torts professor to be an independent thinker but could from a professor in an environmental law clinic.

I’m curious what those of you who will soon be entering law school think.