Perhaps
the only thing really accomplished by the Antitrust Division's case was that,
under the consent decree, the accreditors had to stop demanding that law
schools pay ever higher salaries. Yet
even this supposed accomplishment proved a failure because, ever increasing
salaries having been baked into the cake indelibly, law schools just went right
on increasing them. This was furthered
by the fact that the schools, being among the most elitist parts of a very elitist profession -- Brian
Tamanaha, author of the new book entitled Failing
Law Schools, calls the schools an "elite-drenched environment" and says
"Law is an obsessively credential-focused profession -- have competed
obsessively for well known researchers and writers, competition which has
driven up salaries across the board even though most law professors -- being
lazy? -- don't write.
After
the Antitrust Division fizzled, our law school began submitting papers to and
appearing at meetings in Washington of the so-called National Advisory
Committee of the Department of Education.
The NAC advises the Secretary as to which accrediting bodies should be
federally recognized and with what conditions.
Our point was that the NAC should require the ABA's Section of Legal
Education to begin enforcing proper and legitimate accrediting standards
instead of being the front man for standards designed to advance the economic
and professional perquisites of the law professoriate. Our effort went on for perhaps five or six
years, but finally we quit the lists because it proved impossible to get DOE to
do what should be done. There were a few
very good people on the NAC -- ultimately we even asked one, former Governor
Salmon of Vermont (who also had been President of the University of Vermont),
to join our Board of Trustees, which he did -- but there were also bureaucratic
hacks on the NAC. Even far more
importantly, the DOE staff, which ran the show, was thoroughly incompetent --
this was Washington, you know -- and
in the hip pocket of the ABA. (Once the
staff even claimed, with truly astonishing
incompetence, that accrediting standards cannot be considered in light of
student achievement. Yet student
achievement, I would venture, is the very touchstone of accreditation.)
There
was also one other reform effort that failed.
In the mid 1990s, many deans were already disgusted with ABA
accreditation. The deans of 14 schools,
often highly prominent ones such as Harvard, Chicago, Stanford, Pennsylvania,
Virginia, Cornell and others wrote a letter highly critical of accreditation,
formed the American Law Deans Association, which quickly rose to almost 110
members, and regularly criticized ABA accreditation. To no avail.
They had no effect and, as was publicly conceded, were basically ignored
by the accreditors.
But
none of the ALDA schools ever opted out of ABA accreditation; none ever quit
it. I have long thought that the only
thing that could cause change would be if some leading schools like the ones
just mentioned or others (e.g., Yale, Columbia, Michigan, Texas, Berkeley,
UCLA, NYU, etc.) were to say to the accreditors, "We are not going to play your
game anymore. We disagree with what you
are doing, and we quit." (Edward Levi,
later the Attorney General after being Dean of the University of Chicago Law
School and President of the University, once told the ABA to go fly a kite when
it threatened to disaccredit Chicago because of a dispute over a particular
important library standard. The ABA
backed down.) Such action by leading
schools would have an effect because nobody in his right mind would say that
Harvard, Yale, Chicago, Stanford, Michigan, etc. are not competent law schools, which is the threatened statement, with
associated loss of accreditation, which insures that the vast majority of law schools
stay in line. But (pace Ed Levi) the leading schools don't generally care enough
(notwithstanding that some of them helped create ALDA), don't participate much
in the workings of ABA accreditation, probably receive some benefits from it, and generally are frying other fish. (I note that quitting ABA accreditation would
not cause these schools' students to lose federal loans because the
universities of which the law schools are a part are themselves accredited by regional
accrediting bodies recognized by DOE.)
The
foregoing then, as said at inception, is a brief overview of how the current
situation in legal education came to be.
The situation did not just happen.
It is the result of intended actions of men and women -- self interested
men and women. They persuaded most state
supreme courts to go along with them, although a small number -- preeminently
the courts in Massachusetts and California -- did not go along with the
accreditors' desire that ABA accreditation be the sole means for a law school's
graduates to be eligible to take the bar exam.
(Thus the graduates of our school, which is located in Massachusetts,
can take the bar there and, after passing it, can take the exam in a number of
other states.) Attempts at change have
fizzled and failed, including attempts by the Antitrust Division, by ALDA,
before DOE and, though previously unmentioned here, occasionally before state
courts. If history is a guide, future
attempts would also be pregnant with possible failure.
The
key to everything, of course, lies with the state supreme courts. If they were to change their rules so that
(as in Massachusetts and California) accreditation by the ABA were no longer
the sole means for a school's graduates to be eligible to take the bar exam, if
they were to change their rules so that, for example, accreditation by one of
the regional accrediting bodies which accredit such a wide variety of schools
would also enable a law school's graduates to take the bar exam, then the
situation of legal education likely would change dramatically. For schools, as is true of ours in
Massachusetts, would no longer have to follow the ABA accreditors' high cost,
tuition increasing, heavily-research-oriented rules. Rather, schools would be able, if they
wished, to follow a competent, low cost, more practice-oriented model.
Years
of experience have made me pessimistic about the possibility of obtaining
change. Yet, on the other hand, it has
become more and more obvious, to more and more people, that, as Brian Tamanaha
extensively argues in Failing Law Schools,
the current model of law school enforced by the ABA accreditors is not working
and room should be made for schools that (like MSL) wish to use a different
model. Perhaps this realization may have
dawned on some state courts, or could
dawn on them if competently called to their attention. Perhaps this is worth a try and, despite my
own personal pessimism, will become even more worth a try as a result of
Tamanaha's book and the discussions it may well spawn. At this point, who can say? But we shall see. [1]
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