The Case for the Alternative Third-Year Program

TLDR: The third-year location requirement is a relatively modern invention of the American Bar Association (ABA) as mentioned in this paper, and it has been widely criticized as unnecessary and ineffective in the legal profession.

Abstract: Today, a law student seeking admission to the bar in the vast majority of American jurisdictions must not only train in the law for three years (duration requirement), but must train for all three of those years under the guidance and supervision of a professional class of legal educators within the halls of a law school approved by the American Bar Association (location requirement). The location requirement is a relatively modern invention. As late as 1927, no jurisdiction in the United States required any period of study in a law school as a prerequisite for admission to the bar.(1) The limited objective of this paper is to challenge the legitimacy of the location requirement as applied to the third year of legal training (third-year location requirement). There has never been a persuasive justification for uniformly requiring all law students, regardless of their particular professional aspirations, to spend their third year of legal training within a law school. Today, perhaps more than ever before, there are compelling reasons for states to consider adopting flexible alternatives to the third-year location requirement. Upon analysis, the traditional arguments for the requirement have little persuasive force.(2) Furthermore, the requirement imposes unacceptable costs upon consumers of legal services as well as law students. For many students, the marginal educational benefits of a third year of formal academic training are heavily outweighed by the substantial costs, which include not only rapidly rising tuition expenses, but also foregone income. Moreover, the requirement prevents students from using their third year to pursue legal externships, a valuable alternative mode of legal training. For organizational purposes, this Article has been divided into three parts. Part I briefly discusses the evolution of the location and duration requirements that currently prevail in most states and the justifications that were, and continue to be, offered on their behalf. Part I also summarizes the largely unsuccessful intellectual and political efforts that have been made in the past to reform these requirements. Part II offers several rationales for the repeal of the third-year location requirement and argues that, particularly in the context of the modern legal profession, the traditional justifications for the requirement are unconvincing. Part III outlines a concrete proposal to reform the third-year location requirement. Part III also discusses issues related to implementing the reform. Part IV concludes that, instead of continuing to defer to the judgment of the American Bar Association (ABA), the states should directly regulate the required duration and location of legal training. While recommending that states retain the three-year duration requirement, the Article argues that states should allow students to fulfill this obligation either by completing a traditional three-year academic program at an approved law school, or by completing two years of formal academic training at an approved law school followed by what the Article terms an "alternative third-year program." While this proposal relies primarily upon changes in state law, efforts also should be directed toward pursuing supplementary reform within the ABA. The basic idea behind this reform proposal is by no means novel. It is, in fact, nothing more than a modernized embodiment of what, in 1876, Lewis L. Delafield, then president of the American Social Science Association (the organization which gave birth to the American Bar Association(3)), referred to as "`[t]he best system, [a system in which bar applicants] learn the principles of the law in a school, then apply them for at least a year in an office, and finally pass a public examination by impartial examiners appointed by the courts.'"(4) I. The Evolution of the ABA's Duration and Location Requirements and Some Dissenting Views This part briefly explores the origins of what is now the dominant rule in the United States: a law student is required not only to train in the law for three years, but to spend all three of those years within the halls of an ABA-approved law school. …