The Association of American Law Schools Claims to Favor the Public Interest, While Advancing Its Own

The American Association of Law Schools (AALS) is a professional guild. It never misses a chance to proclaim that it is working in the public interest, while nevertheless focusing on its own interests—expanding the perquisites and number of its members.  The latest newsletter makes this combination even more visible than usual. It devoted its opening essay to Access to Justice-which it claims to favor. Simultaneously, it announced its opposition to a proposal of the American Bar Association, now operating under the watchful eye of Antitrust Division, which could decrease the cost of going to law school—one of the principal barriers to access.   The problem is that the proposal might well over time reduce the number of tenured professors, who, of course, run the AALS.

The ABA proposes that after the first year of law, accredited law schools could permit part-time teachers to teach any or all second and third year courses. The first year would remain mainly the province of a full-time faculty. The rationale of the AALS’s opposition is that “full time faculty are essential to providing quality education.” It provides no empirical support for this claim. There are more than a million practicing lawyers in this country. And the best are extremely articulate and expert in their chosen fields. It would be surprising if some conscientious law school, particularly one in large metropolitan area, could not find superb teachers among them. Indeed, a law school would be in much better position to fire part-timers than tenured professors if they proved inadequate, thus providing for improvement in quality over time.

But let us even assume that on average the part timers are not quite as good a full time professors. They are nevertheless much less expensive. But the AALS position simply rejects cost justification. Quality is the lodestar. But in almost every market there are substantial variations in quality—Rolls Royce limousines to Volkswagens, box seats to bleachers. Not everyone can afford the best.

The question for access to justice is not whether a poor or middle class person can have access to a lawyer as good as one advising a Fortune 500 corporation, but whether he or she can afford a lawyer who will do substantially better than his own pro se representation. And graduates of law schools staffed with more part-time teachers will still have to take the bar exam, putting a floor on quality, just as government regulations put a floor on the quality of cars.

The AALS perpetuates the illusion of a unified legal profession because it makes its members feel good. But lawyers working on the latest mergers at Wachtell, Lipton are performing substantially different functions from those writing typical wills or handling landlord-tenant disputes. Legal education should reflect the heterogeneity of the profession which it serves.

Without the heavy hand of regulation, law schools would operate very differently than they presently do, when so many try to resemble junior varsity Yales in devoting very substantial resources to the production of scholarship.  The AALS is attempting to prevent an experiment that would create such a difference by replacing over time some tenured professors with practitioners. That opposition makes sense for the thousands of tenure-track legal professors but not for the millions of people who need better access to legal services.

Reader Discussion

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on September 26, 2017 at 07:16:47 am

When I was in law school at the University of Texas, the curriculum was mandatory for the first year with one required course (Advanced Constitutional Law, of which there were several different sections) beyond that. The rest were electives.

One UT Law professor, Lino Graglia, told us that, "With two weeks and a good law library, I can teach any reasonably intelligent person to be a lawyer. The rest are barriers to entry." I've never seen any reason to doubt this, and I'll add that the switch from the LLB to the JD was purely about raising a barrier to entry as well.

So, you say the AALS is trying to protect its members' selfish interest? I can't believe there's gambling going on here!

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Kevin Gutzman
on September 26, 2017 at 08:36:47 am

Think of the AALS as a labor union for law professors--a guild for full-time faculty--and it all makes sense. If the UAW had comparable power over GM, there would be import quotas and we'd still be driving Pintos.

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Mark Pulliam
on September 26, 2017 at 10:39:37 am

Professor McGinnis is absolutely right that law schools would operate much differently in the absence of ABA regulation. Low cost legal education that would be every bit as effective as the high-cost model decreed by the ABA would let people get into the legal profession at far lower expense than presently. That would help to solve a problem the ABA admits is serious - the fact that many poor people can't afford legal help when they need it -- but which it wants to solve through government subsidies and more pro bono work.

And Professor Guzman is right that law school is mostly a huge entry barrier. It isn't necessary to, as Lino Graglia said, spend more than a few weeks in law school to become a good lawyer. Clarence Darrow went to the University of Michigan's law school for one semester, then dropped out so he could learn useful things more quickly.

Finally, Mark Pulliam is right to call the AALS a labor union for law professors. Without it, many who hold down high pay, low work jobs would have to find something else to do.

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George Leef
on September 26, 2017 at 16:30:20 pm

l would think that California would be the perfect laboratory for the testing of John's theory. There is no requirement that a candidate attend an ABA-accredited school; for-profit law schools like Western State and Simon Greenleaf are ubiquitous. Do they lower costs? No. Do they improve services for the poor? Not really. The Baby Bar candidates are not always top-shelf.

The problem--at least in civil cases--is that the system is designed to promote settlements over trials. And that raises the costs to ridiculous heights, as discovery is typically a battle that makes the Ardennes look like child's play.

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Miss Creant
on September 26, 2017 at 16:41:22 pm

My best profs were moonlighting judges. lmagine, taking a class from a Posner or a Kozinski! CrimLaw should never be taught by a FT prof, at least.

We could do away with most FT profs. The typical career track is from LS to clerking to academia, with a possible year or two in BigLaw. No real-life experience in the trenches. Exhibit A: Larry Tribe.

When taking issue with Tribe's frequent bouts of constitutional eisegesis, l make it a point to ask him to do the math. :)

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Miss Creant

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