The Tyranny of the ABA?

Here's some information that prospective students should be savvy too before embarking on a law career. Let us know what you think.

cross posted from Balkinization: http://balkin.blogspot.com/

Tuesday, January 22, 2008

What's Wrong With This Picture of Legal Academia?

Brian Tamanaha

In 1995, the Department of Justice filed an antitrust law suit against the American Bar Association alleging that law professors had been utilizing the accreditation process to engage in anti-competitive practices aimed at boosting their pay and reducing their teaching loads (among other things). Without admitting guilt, the ABA entered into a consent decree with the Department of Justice promising to cease such practices.

The accreditation process is justified as the means to insure a quality legal education so that the public will be served by competent lawyers. Oddly, in the very period in which law schools were being instructed to boost their professors’ pay (to attract highly qualified professors) and to cut their teaching hours (so they could do more academic research, which would presumably enhance their knowledge and teaching), the American Bar Association also produced the MacCrate Report, arguing that law schools were doing a poor job of training lawyers. The reason for this failure: law professors were occupied with academic matters while neglecting practical legal training for their students.

So in the mid-1990s the American Bar Association was simultaneously sponsoring two initiatives seemingly at odds: the accreditation process was being used to free up professors for more writing, while law schools were being criticized for spending too much time on academic work and not enough time teaching law students to become skilled lawyers.

When you think about it, the situation we have created is bizarre: law students attend law school to become lawyers (paying tens of thousands of dollars for the privilege); however, as the Report indicates, many law professors do not see it as their job to train lawyers—they are, rather, legal scholars; meanwhile, many judges dismiss the vast bulk of legal scholarship as useless for their purposes; and tons of articles are being published every year, 43% of which are not cited at all and almost eighty percent of which are cited fewer than 10 times. One final tidbit: it is an insult within legal academia to be branded as a school that “teaches for the bar”—notwithstanding that the daunting threshold hurdle every law student faces coming out of law school is to pass the damn bar exam.

It is with this background in mind that I raised skepticism last week about the apparent popularity of interdisciplinary studies within law schools. We can come up with explanations for why this initiative in law schools promises to make our students better lawyers, and maybe it will. [Critics who remarked that my objections exaggerated the costs associated with "interdisciplinary studies" may be right, although I had in mind all associated expenses.] But in light of the above recent history (Larry Solum gives an excellent historical account of contemporary legal academia from a more theoretical perspective; Leiter has an informative take here), it sounds like more of the same old story—law professors pursuing what they find interesting and beneficial.

Would legal academia look any different if we had not collectively engaged in actions designed to boost our pay and decrease our teaching loads [lest I appear like an ingrate, let me pause for a moment to thank my predecessors for making this the best job in the world!]?

In several important respects things would probably be about the same. Tuition at the elite law schools would likely be just as high as it is now, as would high pay and light teaching loads. These aspects, which took off after the consent decree and also happened at the undergraduate level, are more related to market factors and ranking competition than to anti-competitive conduct.

But I think there would be one crucial difference. The accreditation process was utilized to promote and force a single “academic” or research model on all law schools. All law schools were told to reduce teaching loads (from earlier highs of 15 to 18 hours a week) in order to free up writing, and schools were evaluated for their academic output. This sent a strong message to law schools about what matters (not teaching!), which was exacerbated by the “academic reputation rating” category utilized by US News. Now the conventional hiring wisdom is that the most important credential for a teaching position (in addition to having a degree from a top 5 school) is to have published a couple of articles after graduation (with having a PhD now surging in importance).

Law schools were inhibited from developing an alternative model, one which emphasizes producing well trained lawyers. Rather than taking pride in and building an identity around that—“We teach students to pass the bar and to be capable lawyers on the very first day out the door.”—law schools had to claim to be something more than (or other than) a place dedicated to educating lawyers for practice.

Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.

This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.