Why shouldn't it matter to the AALS that conservative and libertarian faculty face discrimination?
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.