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 20th
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 20th 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 20TH
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