Tuesday, June 19, 2012

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 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.