Paul L. Caron

Monday, June 25, 2018

Law Schools Need A New Governance Model

Mark Pulliam (Law & Liberty; Retired Partner, Latham & Watkins), Law Schools Need a New Governance Model:

The governance of law schools, although not a secret, is poorly-understood and seldom discussed. This lack of transparency empowers—or at least emboldens—some of the behind-the-scenes influencers to take unreasonable positions and to pursue self-interested goals that are contrary to the ostensible objective of training students to be effective and ethical lawyers. The result is a dysfunctional legal academy.

In my initial installment on this topic, I briefly discussed the role of the American Bar Association (ABA) in regulating legal education (through its Section of Legal Education and Admissions to the Bar), and in this post I’d like to further develop this critique. However, I don’t want to suggest that the ABA exerts exclusive control, or constitutes the only problem.  As explained in detail by Walter Olson in his 2011 book Schools for Misrule, and Professor Brian Tamanaha in his 2012 book Failing Law Schoolsmany different forces play a role in determining how law schools operate: faculty, administrators, alumni, the legal culture, donors, accrediting organizations, the marketplace for law graduates (which affects the applicant pool), peer pressure, compilers of rankings, and, in the case of publicly-funded schools, the state legislatures. And perhaps others.

I will leave for another column the profound irony that an entire industry cowers before the subjective—and in many respects questionable—ranking of schools by a defunct publication that was, in its heyday, an also-ran among weekly news magazines: U.S. News & World Report.  ...

However problematic the U.S. News ranking methodology may be, law schools and consumers are free to disregard the U.S. News rankings because they are merely advisory, and do not entail any legal or regulatory significance. The same cannot be said for the ABA, which has been granted monopoly status over the accreditation of law schools by the U.S. Department of Education (for purposes of determining eligibility for federal student loan and nearly all state supreme courts (for purposes of determining eligibility to take the bar exam) [Fn. 1: Douglas W. Kmiec (Pepperdine), Law School Accreditation: Responsible Regulation or Barrier to Entry?, 11 Tex. Rev. L. & Pol. 377 (2007)]. Monopoly status is inevitably prone to abuse, and in recent decades the ABA has gone far beyond its original mission of establishing minimum standards for legal education to protect the public. Professor John Baker maintains that “the ABA is an ideological organization forcing its ideology into the standards on accreditation” [John S. Baker (LSU), Seeking Competition in Law School Accreditation, 11 11 Tex. Rev. L. & Pol. 385, 387 (2007)]. ...

In recent decades, at the behest of the ABA and AALS, law schools have been “forced” to increase the ranks of full-time faculty, grant them tenure, increase their salaries, and reduce their teaching loads; hire many “clinical” faculty to provide students with actual skills-training involving real clients (something the “research” faculty teaching “doctrinal” courses are ill-equipped to do, since most of them have scant private practice experience), in small classes; engage in minority outreach, offer scholarships, and provide staff support for “diverse” students whose academic credentials are not competitive with their peers’; and expend considerable resources to maintain their accreditation every seven years in a burdensome regulatory gauntlet.

These higher expenses have—in combination with nearly unlimited access to federal student loans— produced an explosion in tuition costs, which result in a sharply-increased student debt load for the average graduate. In a flat (or declining) job market, many law school graduates find themselves burdened with mortgage-sized loan balances and unable to find suitable employment. Law schools, taught primarily by overpaid “scholars” who impart little in the way of practical legal skills, produce graduates ill-prepared for practicing law. The clinical programs are usually cause-oriented activism. Many debt-ridden graduates cannot even pass the bar exam—and all require attendance at an expensive post-graduation bar review course to have a fighting chance, since most schools eschew teaching black letter law.  In addition, the legal academy has become a left-wing echo chamber, utterly lacking ideological balance, a situation which surely diminishes the cultivation of critical thinking by law students.

The governance model that has led to this dysfunction must be replaced. The Department of Education should re-evaluate the ABA’s monopoly status as the accrediting organization for law schools, or at least insist that the ABA confine itself to legitimate quality control objectives—not social engineering. State supreme courts should likewise re-introduce competition into the process of determining eligibility to take the bar exam, or establish their own standards, or both. Legal education is broken; law schools need a new governance model.

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