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October 23, 2013

The ABA Feels the Heat

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By Gary Jason

A fascinating facet of the ongoing deflation of the higher education bubble is the scramble by law schools to adjust to their dropping enrollments. At many schools, this enrollment drop has been enormous. Applications to law schools generally are down by 18% this fall, the third year in a row of double-digit drops. Just looking at my home state of California, over the last three years, Loyola, UC Hastings and USC have seen enrollments drop between 10 and 20 percent; Santa Clara, San Diego, Chapman, UC Davis, Whittier, Cal Western and Thomas Jefferson by between 21 and 30 percent; San Francisco by between 31 and 40 percent; McGeorge, and Golden Gate by between 50 and 60 percent; and LaVerne by upwards by 70 percent.

Driving this has been the increased publicity about the number of law school grads who cannot find appropriate work, as well as the confiscatory tuition rates charged, ranging from $10,000 a year at a few public universities (where the taxpayers pony up the rest) to $55,000 a year at private and upper-tier public law schools.

Who Counts as Unemployed?

This plunge in law school enrollments has concentrated legal minds wonderfully, pushing the Attorneys Rent-Seeking Union--pardon me, the American Bar Association (ABA)--to finally get real about the crisis. Its council of the Section of Legal Education and Admissions has been making various proposals to address the issue.

The first thing the council did was to modify the criteria for determining who among the graduates are to be counted as being not meaningfully employed. There was some consternation over whether the statistic most commonly used for measuring the employability of law school graduates, which was the percentage of them who found work actually requiring a legal education--as opposed to such work as being a food server or bellhop--within 9 months of graduation.

However, law school deans in California and New York--the bluest of the blue states, naturally--argued that this was unfair to grads of their law schools. (In reality, they were chagrined because they had seen their schools' U.S. News rankings drop because of lackluster placement rates). So the bar was lowered (pardon the pun) by extending the time after graduation to 10 months.

Then the hard issues had to be addressed--how to control the exploding costs law schools have seen. Some proposals were modest and uncontroversial, such as: increasing the units that law schools can offer for life experience to six units (compared to the one unit limit now); increasing the units that law schools can award for "distance learning"--read, MOOCs--to 15 units (compared to the 12 now); and eliminating the consideration of student/faculty ratios in determining whether a law school is up to standards (thus opening the door to much larger class sizes).

Not-Quite-Lawyer Status

The council also proposed that law schools should follow the lead of the state of Washington and allow "limited-practice lawyers"--rather like nurse practitioners--who can offer basic legal services to rural and poor people.

But while these measures would help limit the number of faculty needed, they do not touch the inordinately lavish compensation packages the law profs receive. Here the council tentatively addressed the issue of tenure, which, up till now, the ABA has held should be given to all full-time faculty (except for writing instructors and clinical profs). It voted out two proposals for consideration. The first would only demand that law schools offer some kind of security, though not tenure, for all law school faculties. The other proposal would not require tenure or any other form of security, but would only require law schools to have employment policies that insure quality faculty and protection of academic freedom (presumably by renewable contracts).

Tackling tenure was contentious enough in the hearings, and if eventually adopted as ABA policy, will be hard to actually implement in law school. Yet as one of the members of the council, Maureen O'Rourke, pointed out, "The problem is, the fixed costs we have sit in tenured faculty.... I understand the need for academic freedom.... But as an industry we have a need for flexibility that we just don't have right now."

Leaving the Tenure System Alone

Of course, as bold as O'Rourke was, she never questioned the academic shibboleth that the tenure system promotes academic freedom. The regnant tenure system on college campuses has hardly resulted in the promotion of vigorous debate or intellectual (as opposed to cosmetic) diversity.

Especially delicate is the issue of law school faculty pay. As Kent Syverud, chair of the council, had the audacity to say, "The painful truth is that the problem with costs is that law professors and deans are paid too much relative to the amount of work they do.... The whole problem of costs would go away tomorrow if our salaries were halved."

Syverud's point is well taken. While most law school profs earn between $75,000 and $200,000 per year, many at the higher-rated institutions earn far more than this. For example, the average law professor's salary at the University of Iowa is $185,000, at Rutgers $186,000, and at UC Hastings it is over $187,000. This, remember, is for teaching about eight months a year and two or fewer courses per semester.

Worse still are the compensation packages for law school deans, who average a stunning $294,000. Some, of course, make much more. The dean of New England Law School, for example, earns more than $867,000 in total annual compensation.

The council is now seeking public input on its proposals, and will then finalize its recommendations in November. That final report will be voted on by the entire ABA House of Delegates early next year.

It will be interesting to see how this all sorts out. Can the ABA solve the severe principal/agent problem afflicting law schools? Specifically, will faculty tolerate the sorts of cuts to their perks really needed to bring tuitions back into line with what students can afford?

Count me as dubious that they will.

Gary Jason is a philosophy lecturer and a senior editor of Liberty. His book, Philosophic Thoughts: Essays on Logic and Philosophy is forthcoming from Peter Lang Publishers.


Comments (1)

Alex Bensky:

Golly, if you raise costs you will get fewer customers. Academe is astonished by the idea.

My dad purported to be upset my last year at Michigan Law because the tuition in today's terms for a state resident was about $8,000. Today, again for state residents, it's well over $40,000, and that's just for the right to go to a class.

However, when this seeps through I'm sure law professors will urge, as a means of "everyone has to sacrifice," cuts in their pay.

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