FAILING LAW SCHOOLS

By Brian Z. Tamanaha

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2012 The University of Chicago
All right reserved.
ISBN: 978-0-226-92361-1

Contents

PREFACE: ix acknowledgments:……………………………………….xvPROLOGUE: A Law School in Crisis (Circa 1997)………………………..1ONE: The Department of Justice Sues the ABA………………………….11TWO: Why Is Law School Three Years?…………………………………20THREE: Faculty Fight against Changes in ABA Standards…………………28FOUR: Teaching Load Down, Salary Up…………………………………39FIVE: The Cost and Consequences of Academic Pursuits………………….54SIX: More Professors, More Revenues Needed…………………………..62SEVEN: The Ranking Made Us Do It……………………………………71EIGHT: Detrimental Developments in Legal Academia…………………….85NINE: Rising Tuition, Rising Debt…………………………………..107TEN: Why Tuition Has Gone Up So Quickly……………………………..126ELEVEN: Is Law School Worth the Cost?……………………………….135TWELVE: Warning Signs for Students………………………………….145THIRTEEN: Alarms for Law Schools……………………………………160FOURTEEN: Going Forward……………………………………………167EPILOGUE: A Few Last Words…………………………………………186APPENDIX A: List of Abbreviations…………………………………..189APPENDIX B: List of Law Schools Referenced…………………………..191NOTES:…………………………………………………………..195INDEX:…………………………………………………………..223

Chapter One

The Department of Justice Sues the ABA

In 1995, the Department of Justice (DOJ) filed a civil antitrust complaint against the American Bar Association (ABA), charging that “legal educators have captured the ABA’s law school accreditation process.” This was an inglorious occasion for the ABA, a national organization of lawyers that claims to be the bastion of the rule of law. In the name of protecting the public, the ABA’s Section on Legal Education and Admissions to the Bar, with the imprimatur of the US Department of Education, adopts and enforces accreditation standards for law schools to insure that they graduate knowledgeable, skilled, and ethical lawyers. Forty-five states, by order of their state supreme court, require graduation from an ABA-accredited law school as a prerequisite for admission to the bar. Accreditation is therefore pivotal to law students and to law schools. A school seeking accreditation must meet a rigorous set of requirements; after accreditation is granted, schools undergo an extensive review by the Accreditation Committee every seven years, including an on-site visit by an inspection team.

The DOJ charged that the accreditation process had been subverted by legal educators to ratchet up their salaries and reduce their teaching loads. One accreditation standard established an eight-hour-per-semester limit on teaching loads. Several provisions focused on securing adequate compensation for professors, and one standard required that faculty be given a “reasonable opportunity for leaves of absence and for scholarly research.” Although it says nothing about payment, “the Standard has been applied in practice to require paid sabbaticals, summer stipends, and other forms of research compensation.” Schools were at times “placed on report” when compensation levels were below that of peer schools. Law professors thus enjoyed measures that inured to their financial benefit and insured they would not be subjected to onerous teaching loads.

A number of accreditation requirements imposed high costs on law schools. Law schools were required to have “adequate” facilities, substantial library collections, and low student-faculty ratios tallied on full-time professors in tenure-track positions (adjuncts or professors on short-term contracts did not count toward the ratio). To maintain their standing as genuinely academic institutions, law schools were prohibited from offering bar preparation courses for credit (which helps prop up the lucrative bar review course industry). And several provisions jealously guarded accreditation itself by penalizing students at unaccredited schools. Accredited law schools were prohibited from accepting credits from students seeking to transfer from unaccredited schools. Graduates from unaccredited schools, furthermore, could not enroll in graduate law programs (LLM and SJD) offered by accredited schools. The standards barred them despite the fact that graduates from foreign law schools were freely permitted to enroll.

These various measures effectively kept out law schools built on a low-cost model, which emphasizes teaching rather than research, relies on a smaller core of full-time faculty without tenure at lower pay, uses a larger number of lawyers and judges to teach courses as adjuncts, possesses basic facilities and library collections, and focuses on teaching students practice skills and the core knowledge necessary to pass the bar exam. The DOJ antitrust investigation was prompted by a denial of accreditation to Massachusetts School of Law at Andover, a school that adopted the low-tuition model.

HOW THE INSPECTIONS WERE USED

The inspection arrangement invited abuse. A self-study would be prepared and provided to the inspection team by members of the faculty of the school undergoing review; faculty authors of the study would work faculty concerns into the study; the five- to seven-member ABA site-inspection team, typically composed entirely of law faculty, would interview various constituencies in the law school during their three-day visit; the report of the inspection team would reflect the agendas impressed on them during the process.

The findings of each accreditation review were sent to the dean of the law school and the university president. Legal educators who staffed inspection teams were naturally predisposed in two directions: favoring the law school in its relations with the university and the faculty in their dealings with law school deans. To the university president they would advocate the law school’s interests—seeking to retain more funds and greater autonomy from the university. To the law school dean they would press for compensation, research support, the extension of tenure, and other faculty-friendly conditions.

What accreditation amounted to was legal educators going around the country to school after school advancing the interests of fellow legal educators. As Ronald Cass, then dean of Boston University School of Law, observed in connection with the antitrust charges, “It always seemed that this was a process that was largely designed to help law schools extract funds from their host universities and to help certain groups within law schools extract funds from the dean.” (Dean Cass was doing fine himself, reportedly earning “$479,387 plus $23,173 in benefits in 1996–97.”)

While law school deans might have been pleased with the leverage this arrangement lent them against the university, they became fed up with accreditation demands. The American Law Deans Association was formed in 1994 to advocate changes in the accreditation process. Deans objected that “the process of accrediting law schools—ABA approval and AALS membership—had become unduly intrusive, burdensome, and unrelated to the actual quality of legal education…. Accreditation had become mainly focused on the inputs of legal education—such as space in the library or the level of pay for faculty—and … accreditation seemed increasingly to apply the same input formula regardless of the nature and mission of the particular school.” Reflecting its overreach, in 1994 “about 50 law schools, including many of recognized high quality, were on report [by the Accreditation Committee] for allocating inadequate resources to their law program.”

The ABA entered into a consent decree on the antitrust charges, agreeing to halt its offending practices. The ABA would no longer collect and share salary information and would no longer refer to compensation in connection with accreditation. The ABA would no longer exclude for-profit law schools or prohibit transfer students or graduates from unaccredited schools from moving to ABA-accredited schools. The Accreditation Committee and the Standards Review Committee could not have more than 50 percent of their membership made up of legal educators; site-inspection teams would henceforth include a university administrator from outside the law school and a lawyer or judge or lay member. The ABA would be subject to regular reviews from an antitrust compliance review officer. For ten years the consent decree would remain in effect, during which period the ABA would comply with all DOJ requests for interviews and information.

A humiliating capitulation by the ABA this was. But ABA President George E. Bushnell declared unrepentantly, “We absolutely, categorically deny [the antitrust allegations] and believe we’re right.” To explain its agreement, the ABA mimicked the complaint uttered by every defendant who pleads nolo contendere to a charge: it did not contest the charges because the legal expense of proving its innocence would be too exorbitant. (A delicious irony: the preeminent professional organization of lawyers complaining that it must endure an injustice because legal costs are too high!) When insisting on the ABA’s innocence, Bushnell did not deny the underlying factual allegations; rather, he contended that these actions did not violate antitrust law.

THE FOCUS ON PROFESSOR COMPENSATION

University of Texas law professor Millard Ruud—the former consultant on legal education to the ABA and, later, the executive director of the Association of American Law Schools (AALS)—incensed by the unjust charges, defended the focus on faculty salaries. “It is beyond dispute that a law school’s compensation structure directly affects the quality of those whom it can recruit and retain. Is it mere coincidence that the law schools that compensate its faculty best are also those that have the most highly regarded programs of legal education?”

This defense betrays the flawed mindset of the people involved. Ruud is correct that professors at elite programs have higher pay, but that is irrelevant to the purpose of accreditation. Accreditation is justified as a means to insure a sound program of legal education that produces competent lawyers. This requires that salary be set at a level sufficient to attract capable law teachers. Insisting that faculties should be compensated at levels comparable to their peers, however, is about matching pay among professors. To determine whether faculty pay levels are adequate one must look at the supply of candidates seeking jobs as law professors—which was highly competitive in the 1980s and early 1990s when these accreditation actions were in full bloom.

The official interpretation of the accreditation standard relating to faculty compensation failed to heed this obvious point, stating: “A law school’s faculty salaries, especially of full and associate professors, which remain unfavorable in comparison with the national median and with faculty salaries at approved law schools in the same geographical area may not be sufficient to attract and maintain a competent faculty.” This language suggests that anyone below the comparable median—half of the law faculties at any given time—might be inadequately compensated. Another official interpretation asserted, “A faculty salary structure which ranks at the very bottom of salaries at ABA approved schools is noncompetitive and presumptively in non-compliance with the Standards.” This assertion is absurd on its face because there must always be schools at the bottom. An upward spiral follows from the combined operation of these interpretations: faculties below the median, especially those at the bottom, get moved up with every inspection, thereby raising the median and bottom for the next round. It was a fantastic arrangement for law professors.

Two years before the DOJ complaint, the National Law Journal ran an article on a recent run-up of law professor salaries. “During the past five years, faculty pay scales at most American law schools have gone up, and in some cases they have gone up by more than 50 percent, to the point that it’s not uncommon for full professors to make, with perks, upward of $200,000.” “For example, in 1988–89, Seton Hall paid its full professors an average $71,900. In 1992–93, the average was $107,283…. At the Fordham University School of Law, full professors averaged $89,700 in 1988–89; by 1992–93 the figure had jumped to $125,250.” These salaries, the article added, were supplemented by summer research grants of up to $20,000 and fringe benefits that ranged from 20 to 38 percent of base pay. Funding these salary hikes, average tuition at private law schools rose by an average of 10 percent each year between 1988 and 1992 and, at public schools, by a yearly average of 11.7 percent.

The article identified several factors that contributed to the rapid increase in faculty salaries, including making up for lagging law professor pay in the 1970s, setting attractive compensation levels to recruit talented professors, and rewarding productive professors with raises. “Another reason for the increase,” the article explained, “is that the ABA, through its accreditation process, put pressure on schools to raise faculty salaries, according to several deans.” This article, remember, was written two years before the DOJ suit. The practice was an open secret.

CLINICAL TEACHERS REVOLT

A revealing twist to the DOJ suit exposes a deep rift within law schools that will come up again in this book. As required by antitrust procedures, the DOJ solicited comments on the consent decree. Several of the harshest condemnations of the accreditation process came from a subgroup of legal educators, clinical law professors. Clinical law professors objected to the consent decree for not going far enough, thereby allowing law professors to continue to control the process for their own benefit.

The Clinical Legal Education Association (CLEA), an organization of clinical teachers (with four hundred members at the time), asserted, “because … the accreditation process has been dominated by academics and deans, it has not been able to serve the function of insuring that students are adequately prepared to practice law.” CLEA worried that university administrators on site-inspection teams “are apt to pursue the goal of improving scholarly output as their highest priority,” failing to appreciate the importance of skills-training programs. More important, according to CLEA, the consent decree failed to

change or challenge existing standards and practices which enhance the power of academics at the expense of the needs of students and their future clients. For example, the existing standards mandate that legal academics be granted tenure, but do not provide this protection to many clinical teachers who are involved in preparing students to practice law. The standards also require law schools to permit legal academics to participate in the governance of the law school, but have not been interpreted to mandate that clinical teachers be allowed to partake in governance. This differential treatment serves to preserve the status quo in which the research and other needs of academics are given priority over the needs of students and their future clients.

These views were repeated by other clinicians who submitted objections to the consent decree, prominently including John Elson of the Northwestern University School of Law, a leading voice among clinicians and a veteran participant in accreditation proceedings. Professor Elson confirmed, in bitter language, that legal academics have captured the process and “naturally seek to maintain a system of accreditation that reinforces their notions of ‘quality’ legal education. Those are notions that have elevated the production of scholarship as the highest law school priority and relegated students’ professional preparation as an obligatory burden that should not interfere with academics’ higher intellectual calling.”

Two aspects of these assertions stand out. CLEA suggests that law schools, dominated as they are by neglectful “academic” professors pursuing their scholarly indulgences, are not training competent lawyers. The DOJ never contended that law schools were failing this badly. The second striking aspect is the transparent attempt on the part of CLEA to use accreditation for the benefit of its own interest group—to enhance the status and employment conditions of clinicians. Clinicians must be given tenure and an equal say in governance, CLEA argued, if law schools hope to train competent lawyers.

The airing by clinicians of their grievances exposes a schism that lies below the surface of many law faculties, one that goes to a fundamental divide over whether law schools are academic institutions or exist to train lawyers. As we shall see, this divide has had enduring significance for law schools.

The entreaties of clinicians were rejected by DOJ as raising law school policy issues irrelevant to accreditation. Academic law professors were enviably successful at using the accreditation process to enhance their conditions of employment, and clinical professors were attempting to use the antitrust suit to accomplish the same—in both instances law professors presented their arguments in the name of the public interest.

THE HIGH PRICE OF ACCREDITATION

For an ignominious postscript, at the close of the ten-year period covered by the consent decree, the ABA was brought back to court by the DOJ for six violations of the court’s order. Among these violations, the ABA had failed to insure that no more than half of the members of the Standards Review Committee were law school deans or faculty, and in multiple years the site-inspection teams did not include university administrators from outside the law school. These breached requirements were reforms designed to prevent legal educators from capturing the accreditation process. Judge Royce Lamberth found that “on multiple occasions the ABA has violated clear and unambiguous provisions of the Final Judgment,” and he ordered the ABA to pay $185,000 in attorney’s fees and costs to cover the expenses incurred by the antitrust division in uncovering the violations.

(Continues…)

Excerpted from FAILING LAW SCHOOLSby Brian Z. Tamanaha Copyright © 2012 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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