Between
1923 and 1973 there were two other major developments. In 1952 the ABA persuaded HEW to approve it
as the nationally recognized
accrediting body for law schools. This
imprimatur aided state court acceptance of ABA accreditation. And, of truly enormous importance when the
federal government began guaranteeing and/or making student loans, HEW's
imprimatur meant such loans would be available for legal education (even if a
law school was "free standing" and thus not part of a university that was
itself approved by an accrediting body recognized by the federal government). Loans ultimately became the method of financing law school tuition and, thus, law
schools. So, much of what occurred that
caused tuitions to be raised to today's astronomical levels is attributable to
HEW's recognition of the ABA in 1952. As
the Consultant wrote as far back as 1989, "The single most important factor in
financing legal education has been, and continues to be, the availability of
student loans."
The
other major development in the period 1923-1973 was the rise of the Law School
Admissions Council. The LSAC sponsors
and has made scores of millions of dollars from the LSAT (which was created in
the late 1940s). It also has run a
crucially important loan program. The
LSAC became the third controlling organization in legal education, along with
the ABA Section of Legal Education and the AALS. They were called the Big Three of legal
education. The LSAC's leaders were
people who also were leaders of the other two organizations (the whole crowd
played collective musical chairs) and it financed conferences and conventions
at major and expensive vacation spots which legal educators (and judges) were
delighted to visit.
The period 1923-1973
was preparation for developments of truly enormous importance in 1973
itself. In that year leading legal
educators were deeply concerned over the economic and professional status of
law professors. There accordingly was a
meeting of eighteen prominent leaders to discuss the problem. (Later they incorrectly (in two senses)
became called the "Ten Wise Ones.")
Their proceedings and conclusions were published in the Journal of Legal Education -- this was a
few years before the Supreme Court ruled the professions subject to antitrust,
so that one assumes the publication was not thought the danger it would have
been after that ruling. The report of
the Ten Wise Ones said "many of us envision a more active role for the [AALS], both in defending the fiscal entitlements of
legal education generally and in advancing the economic standards of law
professors directly." (Emphasis added.) They discussed using collective bargaining to
do this, an idea which ultimately went nowhere, and, more to the point, "Some thought a possible goal might be to
develop enforceable standards in support of entitlements of law faculty members
as an alternative to trying to utilize the dynamics of labor-management
bargaining." (Emphasis added.)
In
pursuit of the goal of promoting the "fiscal entitlements" and "economic
standards" of law professors, in 1973 a committee drafted ABA accreditation
standards to achieve this. These
standards were approved by the ABA's House of Delegates. One negative comment was expressed by William
Spann (not to be confused with Warren Spahn), who would soon become President
of the ABA. Spann said that if the ABA
adopted the proposed accreditation standards, "we have sort of set ourselves up
as a collective bargaining agent for law professors against the various Boards
of Regents and other educational bodies of the state." The ABA should not, he said, "become a
collective bargaining agent for the law professors and this [set of standards]
looks very much like a labor contract drawn by a law professor to me." There was obviously little doubt as to the
economic purposes of the new standards.
The
other major development of 1973 was the appointment of a professor named James
White to the position of ABA Consultant on legal education. White ruled with an iron hand for the next 25
years, for the purpose of promoting the economic goals and professional
perquisites of the law professoriate. In
1992 an article in the National Law
Journal said that he was "arguably the most powerful person in the
field." (In truth there was no
"arguably" about it: he was the most powerful figure .)
The article also said that "[a]s the person in charge of accreditation
of law schools for the ABA," he could "decide almost single-handedly on the
very existence of a law school, and the terms of that existence."
In
advancing the economic and professional perquisites of the professoriate, White
employed a group of insiders -- mainly professors but also some practitioners
who did his bidding. Members of the
group did not change much over time.
They enforced rules and practices that dramatically increased
professors' salaries, dramatically lowered their hours of teaching, vastly
increased the size of full-time faculties, largely barred (comparatively
inexpensive) part-time teachers (who were expert judges and lawyers), required
highly expensive libraries to be vastly increased in size and personnel, demanded
facilities costing scores of millions of dollars, promulgated and enforced
rules whose effect was to keep minorities and the poor out of law school and
the legal profession, required large and expensive administrative staffs in law
schools, required heavy use of (and reliance upon) the LSAT (whose owner, the
LSAC, was one of the Big 3 and was financing, from its receipts, many of the
activities of legal education), and, withal, made it necessary for tuitions to
be pushed ever upwards.
ABA
inspection teams pushed this agenda on law schools, which had to meet it under
pain of being called incompetent and being disaccredited -- a threat that was
meaningful to law schools not named Harvard or Yale or Stanford or Chicago or
perhaps 20 others of a total that ultimately exceeded 200. No school was allowed to use a different
model of legal education than the high cost research model that was desired and
demanded by the academics, led by the powerful James White, who ran the
enterprise. Inspection reports were
rigged to accomplish the White group's purposes, and were kept secret so that
the vox populi, the general press,
and all non insiders could not know what was happening. Inconsistent treatments of law schools
abounded, inconsistencies made possible because secrecy covered them up until
much later when, for example, a person who had been at one law school saw
something different perpetrated on his new school. New schools that desired accreditation, or
existing schools that were having difficulties with accreditation, had to hire
as dean, at a high salary, a member of White's inside group in order to
succeed, so that White had this too to dispense as patronage as well as the
trips to fabulous vacation spots.
In the mid 1990s the
Department of Justice's Antitrust Division threatened to bring a case against
the ABA (after our school complained to the DOJ about the accreditors'
anticompetitive activities). The ABA,
which of course had high level contacts in the government, persuaded the
Antitrust Division to enter a weak consent decree which solved very little, but
which prevented the extensive damning evidence collected by the Government from
being disclosed at a trial, and thereby enabled the ABA to keep that evidence
-- thousands of pages of it -- secret.
After entering the weak consent decree, the ABA proceeded to violate
even that weak decree, and, where the decree called for non faculty to fill
committee positions, it appointed judges and lawyers who in previous lives had been faculty members, were imbued with
the ABA orientation, and sometimes had even been ABA accreditors.
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