Why Law School Should Be an Undergraduate Program

In most parts of the world, lawyers are formally trained in an undergraduate degree program. The Bachelor of Law (LL.B), is also an accelerated three-year curriculum. In the United States it takes over twice as long. First you need a 4-year undergraduate degree in any subject—a gratuitous requirement, as there is no such thing as a “pre-law” program like medicine. After that, you must follow a 3-year graduate degree track, leading to a Jurisprudence Doctorate (JD), but the JD is still just a “first” law degree. It teaches the exact same courses as the foreign undergraduate programs.

So why not move it back to where it belongs, as an undergraduate subject? Because U.S. law schools have been turned into graduate professional schools.

These graduate professional schools take basic undergraduate subjects and concepts and exaggerate them into more formal abstractions to look “professional” and conform to university academic culture by emulating university research practices—for example, cross-citations.

This has nothing to do with actually training lawyers or building strong leaders—it promotes conformity, consensus, and groupthink to create a self-perpetuating institution that prioritizes its own survival. The professional graduate law school specifically serves this objective above all others. I’m not saying that the United Kingdom’s model solves all problems, but it solves two of the biggest: time and cost.

So how is it that we can train nuclear, electrical, aerospace, petroleum, and chemical engineers in a 4-year undergraduate program, and then license them as a professional engineer, but the subject called “law” takes almost twice as long? How is it that Israel trains its lawyers in a first-class undergraduate college program, and then their college graduates are both qualified in Israel, and are also qualified to take the New York Bar Exam immediately?

Law schools are accredited by something called the “Bar Association”—and the American Association of Law Schools, which is a trade group run by insiders from academia—that licenses lawyers, asserts professional disciplinary authority, issues exams, and oversees and “certifies” law schools, their curriculum, and degree requirements. The Bar has a “lock” on the entire legal trade and supply chain—it is a classic monopoly, and this monopoly can reach more effectively into a dedicated graduate school that is separated institutionally from the university. It could never reach down to the same extent or manner into an undergraduate academic program that issues an academic degree. The law industry and Bar Association can’t come in and control a BA degree program in a college—perhaps that is among the reasons Oxford has a “BA Jurisprudence.” But the Bar can control a hived-off and regulated law school sitting in a building that it oversees for accrediting purposes, issuing its own terminal degree—the JD is neither an actual doctorate, nor is it a step toward a Ph.D., like the MA.^[1]

If the law were integrated into undergraduate education, free from the monopolistic control of the Bar, it would likely have a profound effect on student intellectual independence and the overall quality of legal education. Why? Because an independent, liberal, non-professional education that is de-linked from explicit industry control and influence would leave aspiring students to study more as independent scholars and develop their ownership of what law means. I’m thinking here of Saul Bellow’s excellent insight from his preface to Allan Bloom’s Closing of the American Mind concerning higher education, where he recommends that the “backflow” of society, meaning its controversies, politics, special interests, and social contentions, be kept off campus as much as possible, so that students have the latitude and freedom to concentrate on developing their own powers of mind. The professional graduate law school does just the opposite: it invites the “backwater” in to class, and turns it into legal cause. This creates the illusion that law has distinct professional utility, separate from the other disciplines. This is reinforced by legal “research” which establishes the law professor as an academic authority, and law school as an academic institution. It’s all a terrible misperception as to what law really is, and what it is for.

What lawyers must understand to become true bearers of an ethical, aspirational social standard—and to be more effective, in practical affairs—is not law per se, but law’s deep antecedents; the principles that slowly evolved into what we call law. That includes history above all else. It includes the broader humanities and science, but it also includes business—especially accounting, statistics, decision science, finance, and general management. Indeed, if we look at law services and the judiciary as a monopoly business system—which it currently is—it is among the most economically inefficient, and dysfunctional. It is ripe for restructuring, or a “hostile takeover” from its shareholders—i.e., citizens. This is also a call for effective legal deregulation, and true market liberalization.

Professional law schools separate law from its source: you.[2] They act like an industrial apple orchard firm, plucking the fruit from the trees, carting it away in baskets, and then sorting the fruit into sets and classifications, and claiming those sets are meaningful representations of the tree. This is done without any perception as to how the tree is anchored, rooted, and nourished, and who really owns the land, the sky, the sun, and the rain. This is also why law is best taught as an undergraduate subject. You are generally still more independent, less conflicted with life’s complexities, and more likely to let “law” become part of all the other things you do when your own “roots and branches”—and wings—are still forming, in the wild, and not in service to a professional orchard manager, corporate harvester, packager and distributor called the Bar Association.

Law should be an undergraduate program because all the legal principles than can actually be taught in a university can be fully transmitted in a BA or BS degree format. The rest of legal learning, including all the necessary things outside law itself, must come from practice and experience; that means getting out of school, and getting to work.

^[1] The law Bar also “throttles” its labor capacity, in order to keep new recruits in school as long as possible, and out of the job market. The Bar acts as a lobbyist for its law firms, by pushing training costs back onto the law student, thereby subsidizing law firm training costs–and in the U.S. there is also no formal intern program. The average law graduation age in the U.S. is an astonishing 28, and it is climbing. This is in contradistinction to the engineer, architect, biologist, commercial pilot, or naval officer, who has been working, earning, and building a career already for six years or more, and solving complex problems, managing people, interacting with customers, suppliers, regulators, and often in foreign countries. Some are commanding war ships, squadrons, and groups in combat, while law students are sitting in libraries. This profound inefficiency and human waste in our nation’s law schools, is one that law students, for some reason, just accept, and indeed are conditioned to accept, by facing application games like “ranking;” from the handcuffs of tuition debt, and by the Bar’s own licensing exam, which predicts very little, especially in ethical and professional attitude. Less than 4 percent of practicing lawyers are under the age of 30, and by this time, their careers may be subject to more willingness to cooperate, comply, and compromise to catch up, after they lost nearly a decade in school. See “Scholarly Restraints? ABA Accreditation and Legal Education,” 19 Cardozo L. Rev. 2091 (1998). The Bar monopoly problem was otherwise stated this way by one law professor: “I tell no secrets when I mention that modern American law schools are obliged to be part of an accreditation cartel, operated by the American Bar Association and the Association of American Law Schools, in conspiracy with the state bars. The central mission of this cartel, conducted under the cover of enforcing supposed educational standards, is to increase lawyers’ profits by driving up the price of entry into the profession, which restricts the supply of lawyers.” John H. Langbein, Sterling Professor of Law and Legal History, Yale Law School, in “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” in History of the Yale Law School, Anthony T. Kronman, editor. Yale, like all earlier American law schools, originally awarded an undergraduate law degree, the LL.B.

[2] By “you,” I imply a natural law or “Volksgeist” and this may also reflect to some degree, an argument made by Oliver Wendell Holmes concerning self-preference. See https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2483&context=wmlr. See also The Common Law, Holmes, HUP 1963. The concept of “personalized law” which challenges legal uniformity, may speak to this kind of legal philosophy. See Personalized Law: Different Rules for Different People, by Ben-Shahar and Porat, OUP, 2021. Their thesis of course should imply a challenge to traditional law training as well, and whether its uniformity and regulatory standardization—U.S. law schools all teach the same subjects from the same cases with the same books under the same ABA oversight—is therefore subject to “personalized law training.”

Photo by Jared Gould — Adobe — Text to Image