Wednesday, June 20, 2012

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.