In a previous MTC article, I discussed some of the challenges in the format and economics of modern American legal education. That format includes an elongated graduate program (three years) on top of a four-year undergraduate degree. I argued that the UK employs a better method through its three-year undergraduate LL.B (Bachelor of Laws) and the Oxford B.A. in Jurisprudence. Cambridge, the University of Edinburgh, and the London School of Economics, among others, host the LL.B (and the 1-year graduate LL.M), which are all considered “QLD,” or qualifying law degrees. Oxford also hosts the B.C.L., or Bachelor of Civil Laws, (an accelerated graduate format), while Canada’s McGill University combines both common and civil law in one program. The UK also recognizes prior learning and experience (or “RPL”) which can speed things up with credit for previous academic work in other fields.
The U.S., by contrast, continues to crank out the J.D. (Jurisprudence Doctorate), which, as Judge Richard Posner relates in Overcoming Law, is effectively an undergraduate law degree and covers no more (in some cases less) than its UK and EU counterparts. Put another way, a law student can be qualified to enter the legal profession as an undergraduate, in the same way our engineering students are also trained as licensed engineers. Instead of sitting in a classroom until your late 20’s (the average law school graduation age in the U.S. is 28), the UK-style program gets students out into the marketplace and into the world of work in at least half the time and half the cost (I discuss this issue at greater length in an academic article for those who may be interested). It is in the world of work—any kind of work and work experience—that a vital transformation takes place for any of us: the constant interaction of working with others; receiving frequent, active feedback from your peers, customers, and others; and reaping the benefits of practice, making mistakes, and learning by doing, as Judge Oliver Wendall Holmes argued.
Looking back on my earlier career in aviation, as a young flight cadet at Embry Riddle Aeronautical University, I was trained first as a private pilot, then as a commercial and instrument-rated pilot, and, finally, as a flight instructor. I think this provides a model of legal training—allow me to explain.
When you learn how to fly (after you pass a comprehensive medical exam), you combine so-called “ground school” subjects like aerodynamics, meteorology, navigation, aircraft systems, regulations, and more, with actual flying lessons with a certified flight instructor (CFI). These ground school subjects are not unlike basic law school subjects like contracts, property, torts, civil procedure, and corporate law. But unlike law, you are explicitly and immediately learning in 3 dimensions, including actual flight operations, and with that, the demands of applying your academic subjects right away, all while developing your motor skills, judgement, and “air sense.”
But there is also something else: you are developing your confidence to fly solo, in complete control of and with complete responsibility for the successful conduct of a planned flight. Indeed, the objective of flight training is to first reach the solo stage where you fly alone, while preparing for eventual written, oral, and practical exams, where you will be awarded (or will fail or wash out) your license and certifications from the Federal Aviation Administration (FAA).
[Related: “What Is the Future of American Legal Education?”]
While I recognize that law schools have something akin to flight “simulators” (moot court) and have clinics, internships, and law review opportunities, they really are not at all like “flying solo,” where the stakes are high. Moreover, there is nothing quite like being in a real court room, following rules and procedures of the court (which, if you do not, will ground your flight immediately), and interacting with judges and opposing counsel. Outside of court, negotiating a settlement, helping a business owner finance a new building, or structuring a start-up business or merger simply cannot be taught to proficiency in law school, in libraries, or by reading and parsing cases.
This brings me to how law schools might be re-organized in what they teach (and how): I think it should resemble flight training, where the goal is to acquire basic knowledge of the fundamentals and some practice applying it through the development of good writing skills, all while aiming for your basic certification (the current Bar exam) so you can get out and work, learn, and develop your “law sense.”
In aviation training, we always say that your license is actually your ticket to learn (don’t tell the passengers or your students that). It doesn’t mean that you’re not qualified; in fact, you are highly qualified and had to prove it by performance examination. But you hold in your hands and in your mind (mens et manus) the basic competence to function safely while gaining precious hours of experience with weather, mechanical problems, air traffic control, international operations, and the care and responsibility of the passengers who put their well-being in your hands. Law is a lot like that—on the one hand, it is a mechanical and autonomous machine, and on the other hand, deeply personal, private, and life-changing matters are entrusted to legal experts who, more than mere contracts, rules, and torts, have to know how to respond in real-time to the dynamic environment of life—how to sense and respond to real people on human terms. There’s only one way to learn that: get out of school as fast as you can and get to work.
Aviation has another lesson for law training: after you get your initial license, and after you acquire documented experience over several years, you then systematically go back to flight training for advanced ratings on more complex aircraft that have higher levels of performance and make deeper demands on your skills (say, like complex litigation, or international tax, or advanced accounting). While the basics are always the basis of your competence, the advanced training builds on them and draws on the experience that you bring to the new qualification exams. The legal equivalent is the advanced law degree, the graduate LL.M or B.C.L. Then, in aviation, you may get your “jet rating” and ATP license (the Airline Transport Pilot qualification), which is called the “Ph.D” of command authority. In both law and aviation, basic training and experience are combined in a lifetime of learning, and for some, in the stature to become a “master instructor,” where you impart your hard-won knowledge, skill, and judgement. Understanding how different people process information and learn is essential to effective flight instruction and legal education.
Christopher Langdell, the storied Harvard Law Dean of the late 19th century who championed the case method, may have harbored a bias against “practitioners,” which in my view has skewed the law school environment into an overly if unnatural theoretical culture. Like flying, law is three-dimensional, and it lives in that complex, often turbulent world.
Learn to solo as fast as you can: that is the goal of all education. There will be plenty of time to come in for a landing and refresh your skills. Then get back out again and fly.
Image: Avel Chuklanov, Public Domain
That’s really the way it works now. Most employers know they need to spend a year or two, at least, providing on-the-job training. That training varies a great deal from one job to another because the careers of law graduates are so varied (litigators, transactional attorneys, investment bankers, gov. officials, etc.) In our society, we use the law degree as a sort of general credential for a wide range of roles. Reducing the time in law school would just impose more costs on private firms (which would be passed on to consumers), the government, and non-profits). What I think we need to do with the three years in law school is to teach more about the legal system as it actually exists, namely as a means of administration, and give students more skills than they get from sitting in lecture classes.
So, essentially, we are back to where we were in the 1880s, before the law schools existed.
Now that legal research is computerized, which eliminated half the law school curriculum, why have law schools at all?
If engineering and nursing can be taught as an undergraduate major, why not law?
I think this article misses it’s strongest point – the expense of the totally irrelevant undergrad degree.
Imagine the expense if all prospective pilots, including those in the military, had to FIRST obtain an undergrad degree. Pilots would demand far greater compensation and with fewer pilots available, get it.
(Never forget that the ABA was established to reduce the number of lawyers and thus increase their pay.)
Lawyers are unaffordable because there is the opportunity cost of the expense and lost wages of the unneeded four year degree, along with ROI for the risk of being stuck with the totally useless (and expensive) undergrad degree if not admitted to law school upon graduation.
A very interesting article. I ran it by my son who is a respected flight instructor. His comments were that the article is “very accurate”. He also liked your statement that the stakes are higher in aviation. “The moot court idea is more like a simulator in aviation, flying solo is a pretty unique experience and the stakes are high.” He also noted that “looking at statistics, the most dangerous pilots are between 200 to 1000 hours. You have enough knowledge and confidence to get yourself into trouble.” Thanks!
As I understand it, the advantage of the simulator – programmed with data from actual crashes – is that you can give the pilot real problems without the related mortal peril.
Moot court doesn’t have problems like drunken defense counsel or judges taking bribes, ie the things the simulator does.
This is the case for an apprenticeship, which is how lawyers were oncd trained. K-12 teachers still are – a final semester as an actual teacher.
My wife, a K-12 teacher, says that in fact it was in that final semester that you comment on in which she learned all that she retained for teaching, not during her “college” classes. She has been awarded as a teacher.
In addition, my son added (re the parallel with legal training): “the only time that you would ever have two pilots pitted against each other would be in a dogfight (war) or during a job interview (sim evaluation); law is very different because you almost always have two lawyers pitted against each other (prosecution and defence). Interestingly, the most feared and well trained airforces in the world, and the countries with the best aviation safety records all use the Canadian/American ab-initio training model. It would be interesting to know how western trained lawyers stack up against countries that use his proposed training model (if there are any?)”
So, more food for thought… and some questions about the parallels.
The difference between wartime dogfighting and law is that killing opposition counsel isn’t an acceptable trial tactic.
As to the purported quality of the American legal profession as a whole, I am not impressed. And then there are things like this: https://freebeacon.com/courts/judge-finds-shocking-malpractice-at-law-firm-that-threatened-free-beacon/