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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 Schools, many 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.  Tamanaha states that law schools “loath” the U.S. News ranking and “endlessly gripe” that its methodology is flawed, but nevertheless are terrified of it due to its unwarranted credibility among law school applicants: “The rankings have law schools by the throat. No question.” Tamanaha laments that “The contours of a $5 billion educational industry are being carved by a self-appointed maker of lists, which are sold for a profit.”

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 [1] over the accreditation of law schools by the U.S. Department of Education (for purposes of determining eligibility for federal student loans) and nearly all state supreme courts (for purposes of determining eligibility to take the bar exam).  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.” [2]

One can debate whether the ABA is controlling the law schools, or whether some law schools—wishing to be “forced” to reduce teaching loads and spend more money on faculty and facilities–control the ABA accreditation process.  It may depend on the circumstances and relative status of the particular law school.  In 1995, the U.S. Department of Justice sued the ABA, alleging that “legal educators have captured the ABA’s law school accreditation process,” in order to raise salaries and restrict competition. As with most cartels, it is in the interest of established market participants to create barriers to entry, and regulatory schemes that increase operating costs often serve that purpose. The ABA settled the case by entering into a humiliating 10-year consent decree.

Undaunted, the ABA bullies law schools into compliance with its liberal agenda. As University of San Diego law professor Gail Heriot (who also serves as a member of the U.S. Commission on Civil Rights) recounted in the Wall Street Journal, in the early 2000s the ABA threatened to revoke the accreditation of George Mason University’s law school (now known as Antonin Scalia Law School) if it did not lower its admission standards for minority applicants (especially African-Americans), solely to increase the number of minority students it enrolled. In the name of “diversity,” GMU was forced to discriminate on the basis of race by accepting some students who did not meet its color-blind admissions criteria. The ABA literally forced an unwilling law school to engage in preferential admissions, in violation of Grutter v. Bollinger (2003). [3]

In 2006, GMU law professor David Bernstein complained (also in the Wall Street Journal) that the ABA’s proposed “diversity” requirements would, if adopted, “only embolden the accreditation bureaucracy, composed mainly of far-left law professors, to demand explicit racial preferences and implicit racial quotas — all in brazen defiance of the law.” Bernstein’s prediction has come true. In the official “interpretation” accompanying the ABA’s Standard 206 (titled “Diversity and Inclusion”), the ABA expressly states that “The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions [such as California’s Proposition 209] is not a justification for a school’s non-compliance with Standard 206.” (Emphasis added.)

As Richard Sander and Stuart Taylor demonstrated in their excellent book Mismatch (2012), placing under-qualified (or in some cases unqualified) applicants in an academic environment for which they are not suited increases the likelihood that they will drop out or fail the bar exam. Educational outcomes are worse for “preferred” (or mismatched) students than for their counterparts who attended schools to which they were competitively admitted. The ABA’s “diversity” edict, in other words, may be harming minority students, and possibly contributing to record-high fail rates on bar exams in Texas and California (e.g., here and here).  (Moreover, many marginal law schools have lowered admissions standards–to what one commentator has called “unconscionable levels”–in recent years due to a sharp decline in the number of applicants.)

The ABA (and what Professor David Elder calls its “incestuous paramour,” the Association of American Law Schools [4]) have done a poor job regulating legal academia, often engaging in transparent feather-bedding and self-dealing. The ABA has also “pressured all law schools to impose racial preferences in faculty hiring.” [5] Some of the ABA’s accreditation standards are simply nonsensical, such as requiring that the law school faculty have veto power over the selection of the dean: “Except for good cause, a dean should not be appointed or reappointed to a new term over the stated objection of a substantial majority of the faculty.” [6] Imagine how dysfunctional the U.S. auto industry would be if General Motors was required to obtain the approval of the UAW when appointing a new CEO!

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.

Future posts will consider other reforms.

[1] Douglas W. Kmiec, “Law School Accreditation: Responsible Regulation or Barrier to Entry?,” 11 Texas Review of Law & Politics 377 (2007).

[2] John S. Baker, “Seeking Competition in Law School Accreditation,” 11 Texas Review of Law & Politics 385, 387 (2007).

[3]  Ironically, GMU, which has recently been (falsely) demonized as a “right wing” law school running amok under the influence of the Koch-funded conspiracy (e.g., here, here, and here), was brought to heel by the ABA a decade ago.

[4] David A. Elder, “‘Hostile Environment’ Charges and the ABA/AALS Accreditation/Membership Imbroglio, Post-Modernism’s ‘No Country for Old Men’: Why Defamed Law Professors Should ‘Not Go Gentle into That Good Night,’” 6 Rutgers Journal of Law & Public Policy 434, 620 (2009).

[5] George W. Dent, “Toward Improved Intellectual Diversity in Law Schools,” 37 Harvard Journal of Law & Politics 165, 175 (2014).

[6] Interpretation 203-1, ABA Standards and Rules of Procedure for Approval of Law Schools 2017-2018.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 25, 2018 at 09:23:55 am

Ausgezeichnet!

Among the toxic consequences of this Inquisition of Educational Terror is the sanctification of the weapon of diversity with its myriad goals, mandates and group-think effects (Supreme Court- sanctioned; thank you Justices Powell and O'Connor,) all concocted and enforced by educational bureaucrats (ABA and AALS for purpose of this commentary) who have hoodwinked the Congress, the Department of Education and, most importantly, the paying public (taxpayers, the payers of exorbitant tuitions, student-admittees and student debtors and the law schools, employers and faculties) into accepting the ridiculous notion that "diversity" is both an intrinsic educational value and an instrumentally-invaluable societal and management tool.

"Diversity" is none of those things. It should be legally banned or voluntarily eliminated as a goal and a tool from public and private education and from public and private employment. The word "diversity" should be stricken from the lexicon of educators and employers. It is but a mask for crypto- racial discrimination (not so disguised anymore) and compulsory group-think among administrators, faculty and students, all to the detriment of students, legal education, the rule of law and society.

BTW: for a powerful insight into the insidious consequences (for just one law school professor) of racially-inspired diversity group-think, you must review the case of the brilliant (but "unacceptably" conservative) Amy Wax at U Penn Law School. Here are two worthwhile links. The first is to her June 5 interview by Brian Lamb on CSPAN:
https://www.c-span.org/video/?446568-1/qa-amy-wax

The second link is Mona Charen's article in National Review about Wax's case:
https://www.nationalreview.com/2017/09/amy-wax-upenn-law-professor-gets-heat-bourgeois-values-op-ed/

The Wax case illustrates just a few of the destructive consequences (as delineated in Mark Pulliam's fine advocacy brief) of what the ABA and the AALS (with the aid of SCOTUS, Congress and the Department of Education) have done to legal education.

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Image of Pukka Luftmensch
Pukka Luftmensch
on June 25, 2018 at 10:45:13 am
Image of Mark Pulliam
Mark Pulliam
on June 25, 2018 at 13:35:50 pm

Thought-provoking post. Ideally, each state's bar exam would suffice to test whatever qualities we want in a lawyer, and we could dispense with accrediting law schools. Alas....

1) It can be hard to a two-day test to evaluate everything you might want to evaluate. (Then again, it's unclear that a three-year course of study evaluates everything we might want to evaluate....)

2) While such a policy appeals to my sense of egalitarianism, the consequences might be the opposite. As we've observed with undergraduate education, accreditation is most important for the least sophisticated buyers: The people who are most likely to be suckered by sham institutions are the people who have the least experience with higher education. (Then again, it's possible to interpret Pulliam's comments as suggesting the high-prestige institutions are shame institutions, too--that is, institutions that fail to provide the greatest education, even if they succeed in providing the greatest prestige.)

That said, I thought this was an odd juxtaposition:

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.

Which would do more to diminish critical thinking: Attending today's left-wing law school, or reducing law school to drilling students on black-letter law?

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Image of nobody.really
nobody.really
on June 25, 2018 at 14:24:15 pm

Nobody asks, "Which would do more to diminish critical thinking: Attending today’s left-wing law school, or reducing law school to drilling students on black-letter law?"

With four lawyers in my family, all of whom came out home, high school and college with well-developed skills of "critical thinking," I can attest that, were "critical thinking" the principle goal, our $650,000 price tag (not counting lost opportunity costs) for credentials from three of the "best" law schools (per US News and World Report:) would have been far better invested in the stock market (now there's an education in "critical thinking"!) and on Hillsdale College tutorials in history, science, economics and the humanities. (And would have been a helluva lot more fun.)

And that was THEN, before the legal academy became mostly a nut house of personal self-inflation and intellectual deconstruction run by a cabal of sociopathic inmates. This is NOW, when nobody who can be taken seriously seriously thinks that law schools nurture and advance "critical thinking." Indeed, "...attending today's left-wing law school..." would appear actually to impair one's "critical thinking" since ideology undermines the capacity for logic. (Ever meet a rational Commie?)

I would note, also, re "black letter law" that there is a mountain of data supporting the firm conclusion that rote memorization is a critical step in the educational process of developing critical thinking.

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Image of Pukka Luftmensch
Pukka Luftmensch
on June 25, 2018 at 15:17:14 pm

One little piece at a time. First, DOE must eliminate ABA - AALS monopoly on Law School accreditation. Second, competitive rankings should be offered by organizations such as the Federalist Society.

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Image of Andrew Leonie
Andrew Leonie
on June 25, 2018 at 19:51:17 pm

I second that motion.

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Image of Mark Pulliam
Mark Pulliam
on June 26, 2018 at 10:01:10 am

As we consider these issues, should we not keep in mind that they are "symptoms" of the larger dysfunctions arising from the perversion of what had been "our" legal system, which has converted it into a means of seeking (and attaining) economic, social and political ends.

Access to use of the sytem in its original functions, developed over about 500 years, required the "protection" of persons of particular qualifications (information & knowledge) through whom the system functioned in its former capacities.

With the perversions into a means to ends, access itself (via accreditations and licensure) has taken on a role separate from service to, or within, the system; becoming more akin to "operators" of the means; widely evidenced by "specializations."

We may need to consider how much of the problems of legal training and subsequent licensure are determined by the current conditions in the system with its predominance of matters "Policies," legislation, regulation and administration. Even the "Legal Education System" itself may have become a means to ends - like the sytem it serves.

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Image of R Richard Schweitzer
R Richard Schweitzer
on June 26, 2018 at 23:42:12 pm

Gosh, I guess too many women and minorities are in law schools these day. Sad!

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Image of excessivelyperky
excessivelyperky
on June 27, 2018 at 04:14:43 am

Law School

https://bnblegal.com/

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Image of rajan
rajan
on June 27, 2018 at 06:23:57 am

[…] Schools Need a New Governance Model” [Mark Pulliam, and thanks for […]

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Image of June 27 roundup – John Culbreath
June 27 roundup – John Culbreath
on June 27, 2018 at 10:34:15 am

I sometimes wonder if "excessivelyperky" is not "nobody.really, " the splenetic Mr. Hyde-side of nobody.really's economics cognoscente, Dr. Jekyll.

Nobody.really feigns the brainiac who would obnubilate through artful quibbling, dissemble smartly as he argues, hoping his intended insults will be perceived as mere peccadillos. Excessivelyperky, in sharp contrast, is opprobrious through the use of common epithets, and one reads him as a clod prepared to broadcast his nescience in order to vilipend his victims.

Two people or one mind divided?
I have two views on the matter.

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Image of Pukka Luftmensch
Pukka Luftmensch
on June 28, 2018 at 10:58:29 am

"Gosh, I guess too many women and minorities are in law schools these day. Sad!"

Hmmm - you may be on to something there!!!

Too many smurfs for my taste!

It is always the same old sad song of woe and victimization that this pesky-perky critter "belches" out. If she were old enough to know what a turntable were, I would suggest that she whack the needle and move it off that irritating scratch.

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Image of gargamel rules smurfs
gargamel rules smurfs
on August 02, 2018 at 08:19:01 am

"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."

Why? Let everybody take the bar exam. If the exam can't determine if someone has the capabilities to be a lawyer, then it shouldn't be mandatory. If it can, then you should be able to do it even if you didn't attend any law school.

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Image of Daniel Rodríguez Herrera
Daniel Rodríguez Herrera
on August 02, 2018 at 10:24:49 am

As a recent graduate, I couldn't agree more. Law school was miserable, and not for the reasons it should be. I came in with a romantic vision of legal tutelage and instead encountered what I later described as a "tour de trampling of the Constitution." If nothing else, it served as a great history lesson on how far we have strayed from the Experiment. The worst part was learning material that flew in the face of all that I believed and then looking around to see my classmates only cared to absorb the material and not question it.

Overall, it did not feel like a place for intellectuals. And I relate too well with the "echo chamber" you described--especially given the neo-Gothic architecture of my school.

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Image of Wilhelm Diogenes
Wilhelm Diogenes
on September 20, 2018 at 06:06:14 am

[…] in the United States—the American Bar Association and its “incestuous paramour,” the Association of American Law Schools—have adopted all manner of standards and requirements pertaining to law schools’ libraries, […]

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Image of Ideological Balance Is Essential to Sound Pedagogy in Legal Academia
Ideological Balance Is Essential to Sound Pedagogy in Legal Academia
on October 04, 2018 at 05:56:51 am

[…] I found while researching my book on legal academia, Schools for Misrule, that the ABA’s and AALS’s (Association of American Law Schools) role as accreditors has had far-reaching structural effects on law schools and probably ideological effects too, as well as restricting competition and discouraging innovation. I agree with Mark Pulliam that the federal government and states should refrain from artificially promoting these groups’ gatekeeper role or, worse, conferring monopoly status on them [Law and Liberty] […]

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Image of Feds and states bless ABA’s gatekeeper status in law school accreditation. Why? | Overlawyered
Feds and states bless ABA’s gatekeeper status in law school accreditation. Why? | Overlawyered
on November 08, 2018 at 08:12:41 am

[…] here, here, and here), but the same is true of the judiciary, the organized bar (not just the American Bar Association, but also state and local bar groups) and large law […]

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Image of The “Pro Bono” Hoax: Part II
The “Pro Bono” Hoax: Part II

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.