Thursday, June 21, 2012

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]

[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.