December 31, 2012

We Must Break the Law School Cartel


By Lawrence Velvel

Failing Law Schools, a recent book by Brian Z. Tamanaha, a law professor who has also been a law dean, savages American legal education--and rightly so. Tamanaha's criticisms go something like this: the ABA accreditors and their allies control and dictate to legal educators.  The controllers are the deans, professors, librarians, etc. who use accreditation to force on all schools their desired model of legal education, a model which is beneficial to the faculty.

Until stopped by the Antitrust Division of the Department of Justice in the mid 1990s, they even fixed salaries -- at high levels, of course.  Teaching loads are low -- often just four to six hours per semester.  Fringe benefits and summer stipends are high (the latter can reach into the 60 thousands).  The number of faculty members is required to be high, so there are plenty of people to share the work and to insure low teaching loads.  Buildings are plush.  Libraries -- which are very costly -- are huge, and many expensive administrators are required.  The LSAT is required even though it causes the vastly disproportionate exclusion of the non-affluent and minorities.

The Desperate Need for High Rankings

Research is stressed, which supposedly justifies low teaching loads, though a huge percentage of faculty members in fact shirk research.  Faculty members are mainly persons with very minimal or absolutely no experience in practice, so that the skills of practice are not taught or, if they are taught, experienced practitioners have to be hired as faculty members to do so.  The need to hire them vastly increases the size of faculties and the costs of law schools.  The LSATs are given overwhelming importance in admissions, which makes life easier for admissions' personnel but results in the exclusion of large numbers of minorities and the poor, an exclusion with heavy social, political and economic costs.

Law schools are also driven by the expensive need to take actions which make them look good in the U.S. News rankings, lest they be diminished in reputation, suffer losses of applicants, and their deans and administrators lose their jobs.  This desperate yearning for good rankings has led some of the schools to fudge, mislead and outright lie, especially about students' credentials and post-graduation employment.  (It is thus not wholly surprising that much of the legal profession treated Bill Clinton's lies under oath when President as no big deal.)

One result is that law schools' costs have gone through the roof.  Law schools are charging tuitions in the high thirty thousands, the forty thousands, even the fifty thousands, and these high tuitions are being demanded even by schools considered to be third and fourth tier in this elitist-ridden, prestige-ridden profession.  Students have to take out huge loans to afford law school and, when they graduate, they can and often do find themselves saddled with debt from law school alone running to $100,000 or $150,000 -- or even more.

An Issue of Social Justice 

Tamanaha's criticisms of legal education are strong ones, but they are hardly new.  Some go back at least as far as the famed Judge Jerome Frank in the first half of the last century.  Others have been made for at least the last 20 to 25 years by persons and schools that have disagreed with and/or been harmed by the conventional wisdom.  These voices were ignored or ridiculed, however.  Only now, when terrible economic circumstances in the U.S. have affected law schools, which often find themselves with (sometimes greatly) reduced applications and revenues, has serious notice been taken of longstanding truths.

Tamanaha accepts that he is "as responsible as everyone else for the situation in which we find ourselves in legal academia."  Yet he was moved to write because of the "conviction that the current economic barrier to a legal career is one of the most important social justice issues of our age," since it is increasingly hard for people to become lawyers "and especially hard for people from modest economic backgrounds to get in to and afford an elite law school." 

Tamanaha thinks the current situation is economically unsustainable, and pushback seems to be under way, because graduates are unable to find jobs that yield enough to pay off their debt.  Nonetheless, tuitions have not decreased, and the happy beneficiaries of the current arrangements -- deans, faculty, librarians, etc. -- continue to rise to its defense.  They point out that legal education is a superior form of education, a claim not devoid of truth, and that the economic situation will change (since it is always cyclical), so that young lawyers will again become able to do alright for themselves.  This, too, bears truth.  But the defenders cannot offer any convincing justifications for how the economics of law school got to be what they are--.one of the longest lasting and most successful cartels, (Perhaps only the diamond cartel has exceeded it in length.)  

A School Built Like a Honda

What we need is some Honda law schools-- i.e., good but low-cost, low-priced schools dedicated to teaching students all of what they need to know -- i.e., both the academic side of law and the practical skills needed by lawyers. The problem, however, is that there are only two states in which it is possible to start such a law school, Massachusetts and California.  In those two states the rules allow for competent non-ABA schools.  Everywhere else a law school must be accredited by the American Bar Association for its graduates to be permitted to take the bar exam immediately upon graduation. Such permission is a sine qua non of a law school's existence

The legal profession being an incestuous one, and the ABA accreditors having played up to and coddled state supreme court justices in many ways for many years, most of the state supreme courts enacted and retain rules requiring graduation from an ABA school in order to take the bar immediately after graduating.  Nor have state supreme court justices, with only a very few exceptions, shown a desire to change the situation.  They are basically in the ABA's  hip pocket (the accreditors have shrewdly made many of them leading figures in accreditation.

Increasingly, state supremecourt justices -- the people in charge of the relevant rules -- are minority members, African Americans in particular.  Yet these justices have shown little or no interest in assailing and/or changing the exclusionary bar examination rules which prevent the creation of competent, low-cost schools that would serve their groups.  It is just as if, having moved into their professional Darien, they are willing to pull up the bridges so that the number of those who follow are limited.  This is a tragedy. It constitutes a barrier to the change that must come.

Lawrence Velvel is dean of the Massachusetts School of Law. 

Comments (5)

George Leef:

Bravo! This is an excellent example of what economists call rent-seeking. Well-placed special interest groups -- the organized bar and the legal education establishment -- have manipulated the law for their benefit, wringing out of students (and ultimately legal consumers) payments much higher than could prevail in a free market. Law schools would be much different than they are if we had not allowed those interest groups to prevail.

Morgan Price:

There's a lot of law schools in California and Massachusetts. Are any of them blowing off the ABA and trying out a low-cost model?

Jonathan Rodney:

It is not necessary to graduate from an ABA-accredited law school to practice in New York. An applicant can attend an ABA-accredited law school for one year, then apprentice for three years and take the bar exam. Such an apprenticeship will give much better practical instruction than the last two years in law school.

It is of note that Massachusetts School of Law (the author's school) began the pushback against ABA rules (which also prompted Antitrust Division interest)conditioning accreditation on such high-cost practices as the use of full-time faculty, the acquisition or construction of physical plant far beyond that required for instruction and the acquisition of a physical library of tens of thousands of volumes--most of which are now available digitally at far lower cost. The ABA's resistance to any real change in the model of legal education developed at what were then (and still are) elite institutions is doing no service to prospective lawyers, much less the profession or society as a whole.


Why would we want to deemphasize the LSAT in admissions? It's basically an IQ test, and it's reasonable for law schools to want the smartest students. (And don't tell me that you need expensive courses to do well on the LSAT--the tips and tricks in those courses can be found in library books for free.)

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