How The Current Situation In Legal Education Came To Pass. Part III

June 21, 2012

How The Current Situation In Legal Education Came To Pass

Part III

  

In the mid 1990s the Department of Justice’s Antitrust Division threatened to bring a case against the ABA (after our school complained to the DOJ about the accreditors’ anticompetitive activities).  The ABA, which of course had high level contacts in the government, persuaded the Antitrust Division to enter a weak consent decree which solved very little, but which prevented the extensive damning evidence collected by the Government from being disclosed at a trial, and thereby enabled the ABA to keep that evidence -- thousands of pages of it -- secret.  After entering the weak consent decree, the ABA proceeded to violate even that weak decree, and, where the decree called for non faculty to fill committee positions, it appointed judges and lawyers who in previous lives had been faculty members, were imbued with the ABA orientation, and sometimes had even been ABA accreditors. 

            Perhaps the only thing really accomplished by the Antitrust Division’s case was that, under the consent decree, the accreditors had to stop demanding that law schools pay ever higher salaries.  Yet even this supposed accomplishment proved a failure because, ever increasing salaries having been baked into the cake indelibly, law schools just went right on increasing them.  This was furthered by the fact that the schools, being among the most elitist parts of a very elitist profession -- Brian Tamanaha, author of the new book entitled Failing Law Schools, calls the schools an “elite-drenched environment” and says “Law is an obsessively credential-focused profession -- have competed obsessively for well known researchers and writers, competition which has driven up salaries across the board even though most law professors -- being lazy? -- don’t write.

            After the Antitrust Division fizzled, our law school began submitting papers to and appearing at meetings in Washington of the so-called National Advisory Committee of the Department of Education.  The NAC advises the Secretary as to which accrediting bodies should be federally recognized and with what conditions.  Our point was that the NAC should require the ABA’s Section of Legal Education to begin enforcing proper and legitimate accrediting standards instead of being the front man for standards designed to advance the economic and professional perquisites of the law professoriate.  Our effort went on for perhaps five or six years, but finally we quit the lists because it proved impossible to get DOE to do what should be done.  There were a few very good people on the NAC -- ultimately we even asked one, former Governor Salmon of Vermont (who also had been President of the University of Vermont), to join our Board of Trustees, which he did -- but there were also bureaucratic hacks on the NAC.  Even far more importantly, the DOE staff, which ran the show, was thoroughly incompetent -- this was Washington, you know -- and in the hip pocket of the ABA.  (Once the staff even claimed, with truly astonishing incompetence, that accrediting standards cannot be considered in light of student achievement.  Yet student achievement, I would venture, is the very touchstone of accreditation.)

            There was also one other reform effort that failed.  In the mid 1990s, many deans were already disgusted with ABA accreditation.  The deans of 14 schools, often highly prominent ones such as Harvard, Chicago, Stanford, Pennsylvania, Virginia, Cornell and others wrote a letter highly critical of accreditation, formed the American Law Deans Association, which quickly rose to almost 110 members, and regularly criticized ABA accreditation.  To no avail.  They had no effect and, as was publicly conceded, were basically ignored by the accreditors.

            But none of the ALDA schools ever opted out of ABA accreditation; none ever quit it.  I have long thought that the only thing that could cause change would be if some leading schools like the ones just mentioned or others (e.g., Yale, Columbia, Michigan, Texas, Berkeley, UCLA, NYU, etc.) were to say to the accreditors, “We are not going to play your game anymore.  We disagree with what you are doing, and we quit.”  (Edward Levi, later the Attorney General after being Dean of the University of Chicago Law School and President of the University, once told the ABA to go fly a kite when it threatened to disaccredit Chicago because of a dispute over a particular important library standard.  The ABA backed down.)  Such action by leading schools would have an effect because nobody in his right mind would say that Harvard, Yale, Chicago, Stanford, Michigan, etc. are not competent law schools, which is the threatened statement, with associated loss of accreditation, which insures that the vast majority of law schools stay in line.  But (pace Ed Levi) the leading schools don’t generally care enough (notwithstanding that some of them helped create ALDA), don’t participate much in the workings of ABA accreditation, probably receive some benefits from it, and generally are frying other fish.  (I note that quitting ABA accreditation would not cause these schools’ students to lose federal loans because the universities of which the law schools are a part are themselves accredited by regional accrediting bodies recognized by DOE.) 

            The foregoing then, as said at inception, is a brief overview of how the current situation in legal education came to be.  The situation did not just happen.  It is the result of intended  actions of men and women -- self interested men and women.  They persuaded most state supreme courts to go along with them, although a small number -- preeminently the courts in Massachusetts and California -- did not go along with the accreditors’ desire that ABA accreditation be the sole means for a law school’s graduates to be eligible to take the bar exam.  (Thus the graduates of our school, which is located in Massachusetts, can take the bar there and, after passing it, can take the exam in a number of other states.)  Attempts at change have fizzled and failed, including attempts by the Antitrust Division, by ALDA, before DOE and, though previously unmentioned here, occasionally before state courts.  If history is a guide, future attempts would also be pregnant with possible failure.

            The key to everything, of course, lies with the state supreme courts.  If they were to change their rules so that (as in Massachusetts and California) accreditation by the ABA were no longer the sole means for a school’s graduates to be eligible to take the bar exam, if they were to change their rules so that, for example, accreditation by one of the regional accrediting bodies which accredit such a wide variety of schools would also enable a law school’s graduates to take the bar exam, then the situation of legal education likely would change dramatically.  For schools, as is true of ours in Massachusetts, would no longer have to follow the ABA accreditors’ high cost, tuition increasing, heavily-research-oriented rules.  Rather, schools would be able, if they wished, to follow a competent, low cost, more practice-oriented model.

            Years of experience have made me pessimistic about the possibility of obtaining change.  Yet, on the other hand, it has become more and more obvious, to more and more people, that, as Brian Tamanaha extensively argues in Failing Law Schools, the current model of law school enforced by the ABA accreditors is not working and room should be made for schools that (like MSL) wish to use a different model.  Perhaps this realization may have dawned on some state courts, or could dawn on them if competently called to their attention.  Perhaps this is worth a try and, despite my own personal pessimism, will become even more worth a try as a result of Tamanaha’s book and the discussions it may well spawn.  At this point, who can say?  But we shall see.[1]

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[1] Much of the overview posted here comes from a small book, entitled The Gathering Peasants’ Revolt In American Legal Education, written by Professor Kurt Olson and me in 2008.  Anyone who would like more details, or to obtain any of the extensive books, reports, and memos on which we relied, can consult Peasants’ Revolt.

How The Current Situation In Legal Education Came To Pass. Part II

June 20, 2012

How The Current Situation In Legal Education Came To Pass

 

Part II

  

The period 1923-1973 was preparation for developments of truly enormous importance in 1973 itself.  In that year leading legal educators were deeply concerned over the economic and professional status of law professors.  There accordingly was a meeting of eighteen prominent leaders to discuss the problem.  (Later they incorrectly (in two senses) became called the “Ten Wise Ones.”)  Their proceedings and conclusions were published in the Journal of Legal Education -- this was a few years before the Supreme Court ruled the professions subject to antitrust, so that one assumes the publication was not thought the danger it would have been after that ruling.  The report of the Ten Wise Ones said “many of us envision a more active role for the [AALS], both in defending the fiscal entitlements of legal education generally and in advancing the economic standards of law professors directly.”  (Emphasis added.)  They discussed using collective bargaining to do this, an idea which ultimately went nowhere, and, more to the point, “Some thought a possible goal might be to develop enforceable standards in support of entitlements of law faculty members as an alternative to trying to utilize the dynamics of labor-management bargaining.”  (Emphasis added.)

            In pursuit of the goal of promoting the “fiscal entitlements” and “economic standards” of law professors, in 1973 a committee drafted ABA accreditation standards to achieve this.  These standards were approved by the ABA’s House of Delegates.  One negative comment was expressed by William Spann (not to be confused with Warren Spahn), who would soon become President of the ABA.  Spann said that if the ABA adopted the proposed accreditation standards, “we have sort of set ourselves up as a collective bargaining agent for law professors against the various Boards of Regents and other educational bodies of the state.”  The ABA should not, he said, “become a collective bargaining agent for the law professors and this [set of standards] looks very much like a labor contract drawn by a law professor to me.”  There was obviously little doubt as to the economic purposes of the new standards.

            The other major development of 1973 was the appointment of a professor named James White to the position of ABA Consultant on legal education.  White ruled with an iron hand for the next 25 years, for the purpose of promoting the economic goals and professional perquisites of the law professoriate.  In 1992 an article in the National Law Journal said that he was “arguably the most powerful person in the field.”  (In truth there was no “arguably” about it:  he was the most powerful figure.)  The article also said that “[a]s the person in charge of accreditation of law schools for the ABA,” he could “decide almost single-handedly on the very existence of a law school, and the terms of that existence.”

            In advancing the economic and professional perquisites of the professoriate, White employed a group of insiders -- mainly professors but also some practitioners who did his bidding.  Members of the group did not change much over time.  They enforced rules and practices that dramatically increased professors’ salaries, dramatically lowered their hours of teaching, vastly increased the size of full-time faculties, largely barred (comparatively inexpensive) part-time teachers (who were expert judges and lawyers), required highly expensive libraries to be vastly increased in size and personnel, demanded facilities costing scores of millions of dollars, promulgated and enforced rules whose effect was to keep minorities and the poor out of law school and the legal profession, required large and expensive administrative staffs in law schools, required heavy use of (and reliance upon) the LSAT (whose owner, the LSAC, was one of the Big 3 and was financing, from its receipts, many of the activities of legal education), and, withal, made it necessary for tuitions to be pushed ever upwards.

            ABA inspection teams pushed this agenda on law schools, which had to meet it under pain of being called incompetent and being disaccredited -- a threat that was meaningful to law schools not named Harvard or Yale or Stanford or Chicago or perhaps 20 others of a total that ultimately exceeded 200.  No school was allowed to use a different model of legal education than the high cost research model that was desired and demanded by the academics, led by the powerful James White, who ran the enterprise.  Inspection reports were rigged to accomplish the White group’s purposes, and were kept secret so that the vox populi, the general press, and all non insiders could not know what was happening.  Inconsistent treatments of law schools abounded, inconsistencies made possible because secrecy covered them up until much later when, for example, a person who had been at one law school saw something different perpetrated on his new school.  New schools that desired accreditation, or existing schools that were having difficulties with accreditation, had to hire as dean, at a high salary, a member of White’s inside group in order to succeed, so that White had this too to dispense as patronage as well as the trips to fabulous vacation spots. 

  

TO BE CONTINUED TOMORROW, JUNE 21^ST

How The Current Situation In Legal Education Came To Pass. Part I

June 19, 2012

How The Current Situation In Legal Education Came To Pass

Part I

            A prior post discussed the unhappy state of legal education today.  So I have thought to now set forth a brief historical overview of how this situation came to pass.  It is, perhaps, a classic story of the seizure of power and authority -- for the purpose of self interest, of course.  It is also, perhaps, one of only a few cases in America where power and authority were seized by persons who lacked and did not use big money to achieve their goal.  The seizure occurred, rather, through lawyerly verbalness and influence. 

             The beginning of the story can be placed at approximately the turn of the 20^th Century.  The legal profession was in bad odor.  Night law schools serving the immigrant poor were proliferating.  Nativist and racial attitudes were, shall we say, not uncommon.  Wanting to rid themselves and the profession of the  competition from the night schools and the immigrant poor, academics who were in the ABA’s Section of Legal Education (begun in 1893) created the Association of American Law Schools in 1900.  More stringent standards and practices for legal education were likewise created.  The men and the schools which led the cavalcade were academic in orientation, not practice oriented.  And ultimately, in the first 50 or 60 years of the 20^th Century, many or most of the schools which were serving the poor were driven out of business.  A few -- I think it fair to say only a very few -- survived, in large part by adopting an academic orientation.

             In 1923 there were two major developments.  The position now known as the “Consultant” to the ABA on legal education was created.  And the ABA’s Section of Legal Education -- whose leading personnel were interchangeable with AALS personnel (they were usually one and the same), began to accredit law schools.  The Consultant’s position grew into the most powerful one in legal education by the 1980s, when his word, as veritable dictator, determined which law schools would live and which would die. 

            ABA accreditation, run by the Consultant with the extensive assistance of the ABA Section/AALS academics, began to be used to run out of business the schools that did not do as the academics desired.  This exclusion of the nonconforming was achieved by persuading most state supreme courts not to allow law graduates to take the bar exam unless their law schools were accredited by the ABA.  If a school’s graduates could not take the bar exam, the school would be unable to continue in existence because its graduates would be unable to practice law.

             The process of running the nonconforming schools out of business went from strength to strength one might say, until it achieved the apogee of near (but never complete) success in roughly the 1970s.  State supreme courts acceded to the ABA because, they have claimed, the ABA Section of Legal Education was supposedly a good accreditor; they could not themselves judge schools (and apparently did not want general accrediting bodies to judge law schools); the Section lobbied state judges extensively; and it made sure to honor state supreme court justices, especially chief justices, by putting them in high positions in its structure (and, of course, by paying their way to the fancier watering spots of the U.S. and the western world (e.g., Jackson Hole, Sarasota, London) where conferences and conventions were held.

             Between 1923 and 1973 there were two other major developments.  In 1952 the ABA persuaded HEW to approve it as the nationally recognized accrediting body for law schools.  This imprimatur aided state court acceptance of ABA accreditation.  And, of truly enormous importance when the federal government began guaranteeing and/or making student loans, HEW’s imprimatur meant such loans would be available for legal education (even if a law school was “free standing” and thus not part of a university that was itself approved by an accrediting body recognized by the federal government).  Loans ultimately became the method of financing law school tuition and, thus, law schools.  So, much of what occurred that caused tuitions to be raised to today’s astronomical levels is attributable to HEW’s recognition of the ABA in 1952.  As the Consultant wrote as far back as 1989, “The single most important factor in financing legal education has been, and continues to be, the availability of student loans.”

             The other major development in the period 1923-1973 was the rise of the Law School Admissions Council.  The LSAC sponsors and has made scores of millions of dollars from the LSAT (which was created in the late 1940s).  It also has run a crucially important loan program.  The LSAC became the third controlling organization in legal education, along with the ABA Section of Legal Education and the AALS.  They were called the Big Three of legal education.  The LSAC’s leaders were people who also were leaders of the other two organizations (the whole crowd played collective musical chairs) and it financed conferences and conventions at major and expensive vacation spots which legal educators (and judges) were delighted to visit. 

TO BE CONTINUED TOMORROW, JUNE 20^TH

June 7, 2012

Law School Should Remain Accessible to All

            The legal profession and, in roughly the last 110 years or so, law schools have always been a route to advancement in America.  At the presidential level, lawyers include, among others, Jefferson, Madison, Monroe, Lincoln, Cleveland, Franklin D. Roosevelt, Nixon, Clinton and Obama.  The numbers of state and federal legislators who have been lawyers are legion.  The same for governors.  Many high corporate officials have been lawyers.  And none of this is even to mention that lawyers are prominent at professional and civic levels ranging from Wall Street to small firms. 

            So it is important that law schools and the law remain open to, remain a rite of advancement for, the middle and lower economic classes.  But such access is increasingly difficult to come by.  The reasons have to do with elitism, failure to teach students what they need to know in order to practice, and costs.  The elitism has been with us for scores of years.  The failure to teach the skills of practice have been with us almost as long.  The staggering costs (tuitions) are a more recent phenomenon.  All of this, and much more, is discussed in a new book by Brian Tamanaha, formerly a dean of the St. John’s Law School and now a law professor at Washington University of St. Louis.  Many of Tamanaha’s criticism and suggestions mirror the views and practices of the Massachusetts School of Law since its inception in 1988.

            The criticisms made of law schools include the following:  law professors’ salaries are very high (sometimes ranging into the mid three hundred thousand dollar range or averaging over $250,000).  They are far higher than any other academic fields except medicine.  In part due to very high salaries, law school tuitions are very high -- often being between $35,000 and more than $50,000 per year.  Law professors teach few hours of class, making it necessary to have more professors in each school, which again pushes up tuitions.  Law professors are entirely research oriented (although their research is of little or no benefit to students); they have very little experience in practice, lack knowledge of the arts and skills of practice, and cannot teach such skills to students though most students wish to become practicing lawyers.  In pursuit of higher US News rankings, law schools seek students with, and give available financial assistance to, students with high LSAT scores.  This forces other, “lower ranked” students, who pay full tuitions, to in effect pay the way of the students with high LSATs.  Again in pursuit of high US News rankings, some law schools have told falsehoods about their students’ LSAT scores, undergraduate grade point averages, or starting salaries after graduation.  Law schools have failed to prepare students for bar examinations.  By increasing tuitions to astronomical levels, law schools have made it necessary for students to take on very high amounts of debt, often ranging between $100,000 and $135,000.  These amounts of debt play hob with students’ lives after they graduate.

            A way to cure these problems, and to make legal education and its associated social and economic mobility available to middle class and lower class students, is to reverse the current practices (as our school has done).  Professors should have extensive, and often continuing, experience in practice, teach the arts and skills of practice to students.  Professors teach reasonable numbers of hours, not low amounts of hours.  They should focus on good teaching, rather than on research of little or no value to students.  They should earn good but not astonishingly huge salaries.  Schools should eschew the inevitably elitist LSAT.  They should prepare students for the bar examination.  And, by use of these and similar techniques, tuition should and can be kept low – it can be kept to between 15 and 20 thousand dollars per year, instead of not 35 or 40 or 45 or 50 thousand dollars per year.