Paul L. Caron

Saturday, October 8, 2011

Tamanaha: The Coming Senate Hearing on Law School Reporting Malfeasance

Brian Tamanaha (Washington U.), Why Law Schools Need External Scrutiny:

Get ready law schools: A Senate hearing on the ABA regulation of law schools might be coming. That is the subtext of Senator Boxer's most recent letter to the ABA. It's overdue.

Law schools have demonstrated time and again that we are incapable of regulating ourselves ... as highlighted by two recent examples.

The recent disclosure that Illinois law school had submitted false LSAT and GPA medians to the ABA and US News was bad enough (coming on the heels of Villanova's similar disclosure), but that is not the worst of it. The real scandal is that law schools and the ABA have created a bizarre arrangement that appears designed to allow false reporting.

Law School Admissions Council (LSAC) administers the LSAT and maintains records on every single law student at every accredited law school in the United States. The ABA and LSAC jointly publish the ABA-LSAC Official Guide to ABA Approved Law Schools. Both the ABA and LSAC put their imprimatur on the validity of the data.

Now here's where the arrangement gets strange. The ABA asks each law school to supply data on the LSAT and GPA of the 1L class, and it publishes in the Official Guidebook whatever information law schools submit. What's weird about this is that the co-publisher of the Official Guidebook, LSAC, has this information in its database (literally). The ABA could simply ask LSAC (rather than law schools) to supply this information (but it doesn't), and LSAC puts its name on a book that contains information that it could easily check (but it doesn't). As a result, law schools can submit false information with impunity. ...

LSAC could blow the lid off this tomorrow by supplying the true LSAT and GPA medians for every law school for the past ten years--but it won't. ... LSAC is a non-profit organization controlled by law schools (revenue of $70,000,000 last year), with a board of trustees nominated by law schools (and the President, who earned $600,000 in 2010, is a former law school dean). LSAC apparently views its primary loyalty as properly oriented toward law schools--that is--toward protecting its constituent members.

One might wonder why the ABA would go along with such an arrangement, and would put its name on an "Official Guidebook" with an organization that exists to serve the interests of law schools. After all, the ABA is supposed to be regulating law schools. Well, the thing is, the ABA Section on Legal Education has itself long been dominated by legal educators. ... It's a good old-fashioned story of regulatory capture.

That brings me to the second recent event which confirms that law schools need external scrutiny. As Senator Boxer's recent letter observes, the ABA made the inexplicable decision to remove from its survey of law schools for this year the question asking what percentage of the class of 2010 had obtained jobs that required a JD (nine months after graduation). This decision is inexplicable because the precise charge of the committee was to improve transparency, yet they chose to delete (this year) the single most important question.

[I]t is hard not to notice that a few key participants in this decision are from law schools that had dismal employment rates for 2009, rates which would be even worse for 2010. And now law schools will not be required to disclose the information because the ABA is not asking for it (of course they are free to voluntarily disclose it).

It's time to have external scrutiny by a body that is not beholden to law schools. The Senate has a particular interest in this matter because federal loans are keeping law schools afloat (and tuition high).

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Perhaps at a Senate hearing, the ABA can ask the Senators whether they are free to deny accreditation to new law schools, whether the antitrust laws would prohibit that, and whether the Senators -- who can write new antitrust laws -- are willing to do anything to change that.

The Senators could also be asked how the federal government calculates the nation's unemployment rate, and whether there is full disclosure of those who are, say, severely underemployed or stuck in part time jobs when they want full time. It just feels that a lot more than 9% of the people in this country who want one do not have real jobs.

Posted by: Skeptical | Oct 10, 2011 8:45:28 AM

The Senate should call the National Conference of Bar Examiners to ask why it refuses to publish MBE performance data by law school. The MBE is the only universally-available legal education output measure. The NCBE knows how graduates of every law school perform on this measure every year. It simply declines to tell us.

As a result, the ABA is left with its grossly imperfect bar passage rule, which effectively exempts schools in small legal markets from any real performance review and disproportionately penalizes schools in large legal markets.

Posted by: Theodore Seto | Oct 9, 2011 11:11:48 AM