June 19, 2012
How The Current Situation In Legal Education Came To Pass
A prior post discussed the unhappy state of legal education today. So I have thought to now set forth a brief historical overview of how this situation came to pass. It is, perhaps, a classic story of the seizure of power and authority -- for the purpose of self interest, of course. It is also, perhaps, one of only a few cases in America where power and authority were seized by persons who lacked and did not use big money to achieve their goal. The seizure occurred, rather, through lawyerly verbalness and influence.
The beginning of the story can be placed at approximately the turn of the 20th Century. The legal profession was in bad odor. Night law schools serving the immigrant poor were proliferating. Nativist and racial attitudes were, shall we say, not uncommon. Wanting to rid themselves and the profession of the competition from the night schools and the immigrant poor, academics who were in the ABA's Section of Legal Education (begun in 1893) created the Association of American Law Schools in 1900. More stringent standards and practices for legal education were likewise created. The men and the schools which led the cavalcade were academic in orientation, not practice oriented. And ultimately, in the first 50 or 60 years of the 20th Century, many or most of the schools which were serving the poor were driven out of business. A few -- I think it fair to say only a very few -- survived, in large part by adopting an academic orientation.
In 1923 there were two major developments. The position now known as the "Consultant" to the ABA on legal education was created. And the ABA's Section of Legal Education -- whose leading personnel were interchangeable with AALS personnel (they were usually one and the same), began to accredit law schools. The Consultant's position grew into the most powerful one in legal education by the 1980s, when his word, as veritable dictator, determined which law schools would live and which would die.
ABA accreditation, run by the Consultant with the extensive assistance of the ABA Section/AALS academics, began to be used to run out of business the schools that did not do as the academics desired. This exclusion of the nonconforming was achieved by persuading most state supreme courts not to allow law graduates to take the bar exam unless their law schools were accredited by the ABA. If a school's graduates could not take the bar exam, the school would be unable to continue in existence because its graduates would be unable to practice law.
The process of running the nonconforming schools out of business went from strength to strength one might say, until it achieved the apogee of near (but never complete) success in roughly the 1970s. State supreme courts acceded to the ABA because, they have claimed, the ABA Section of Legal Education was supposedly a good accreditor; they could not themselves judge schools (and apparently did not want general accrediting bodies to judge law schools); the Section lobbied state judges extensively; and it made sure to honor state supreme court justices, especially chief justices, by putting them in high positions in its structure (and, of course, by paying their way to the fancier watering spots of the U.S. and the western world (e.g., Jackson Hole, Sarasota, London) where conferences and conventions were held.
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.