December 27, 2011
What Factors in 2012 Will Be Examined That Can be Viewed as a Federal Public Policy Failure to Provide Affordable Civil Legal Services to the Electorate?
2011 may go down in history as the year the ABA-Legal Academy cartel controversy moved beyond the law prof blogging reformers to receive major legal media and, more importantly, major general media attention by some opinion leaders that has caught the attention of Congress. For a recap, see Karen Sloan's The year the chickens came home to roost: During 2011, it became impossible for law schools to deny that they had real problems on NLJ ("Lots of news broke out about legal education during the past year. Unfortunately for law schools, much of it was bad. Here are the top 10 law school stories of 2011.")
While recent congressional interest has focused it inquires to the ABA on important but ultimately sideline issues like gamed stats, congressional interest just may focus on the broader picture in 2012, the entire cartel behavior -- who should be an accreditation body, assuming one is even needed, and federal financing of student loans. Providing means to bring legal services to the masses in the context of civil justice will "sell" well to voters at home. The factors involved are sufficient to produce a bi-partisian effort. More about that later.
AM Law Daily's Matt Leichter critiques David Segal argument in For Law Schools, a Price to Play the A.B.A.'s Way (NYT) that escalating tuition increases are caused by the ABA's accreditation regime. See Leichter's ABA Regulations Don't Cause Tuition Increases, Law Schools Do. Leichter also argues that the "war for talent" by way of offering high law prof compensation packages to obtain or retain law faculty may be a factor but is insufficent in and of itself. Well, it would be interesting to compare compensation packages if disclosed like what has just happened at the University of Texas. "Overloads" paid for all sort of non-teaching related "administrative" duties are fairly commonplace; long ago, law profs contributed to running the law school motivated by being "true to their school" and doing so without any additional compensation. "Research stipends" were once provided by law schools to profs where had to travel to far away locations to conduct research and were evaluated on a case-by-case basis. That was well before the days of Internet archives access. Today there is substantially less accountability and project-justification for paid "research stipends;" hell, I know first hand that "research stipends" have been used by law profs to buy laptops!
The case can and indeed has been oftentimes made that needless, reckless and indeed irresponsible law school tuition increases can be attributed to (1) the virtually endless supply of guaranteed student loan revenues that (2) have been financing the legal academy long-term hiring binge (3) to reduce the student-to-faculty ratio from the ABA's 30:1 requirement (4) in the pursuit of improving a law school's almighty US News Rankings -- when possible below 10:1 helps temporarily at the moment. Of course as more and more schools play this game -- note how 15:1 or half the ABA's requirement has been the competitive objective just to remain in the game since about 2006 (image, right) --, one can imagine the next moving target could be 7:1. After that, what 5:1? More law prof hiring does not increase teaching loads per faculty member. It does just the opposite. It lowers teaching loads so profs can spend more time engaging in "legal scholarship." It's a big selling point for acquiring senior and junior law profs in the annual law prof meat market.
Here's a case where the ABA accredition requirements present an uncompetitive ceiling which cannot be blamed for rising tuition unless the ABA also mandated a student-to-faculty ratio floor. For the move to lower the student-faculty ratio, clink on the image, right, published in Leichter's article.
Law prof compensation competitiveness for "talent" does not come into as much play here as the legal academy's historical practice of increasing its faculty labor force and its associated escalating labor cots by highing more faculty. One may say law schools increase tuition costs because they can finance this higher binge by way of tuition loans. Once can also say that budget cutbacks by law school's university parent entities, public or private motive many law schools to incremental yearly increases for admitted and enrolled students in successive 1L enrollments to offset the budget loss. And then there is the whole is of the amount of revenue each law school must kick back to their universities. The ABA has been less than aggressive in monitoring this factor over the years
Clearly the matter of tuition increases is the result of a matrix of factors in the legal academy-ABA-parent university relationship, but if one factor stands out law schools indeed are the prime mover for causing rising tuitions. What clearly stands out as a major factor is the objective to reduce student-faculty ratios by hiring more law profs instead of reducing their student enrollments. I don't see that changing unless someone pulls the plug on the loan programs which virtually guarantee a revenue stream for the legal academy.
Universities are outright rentiers. They have easy access to debt-revenue, so they take it. ... The only thing left to surprise us is on a moral level: How can university administrators sincerely believe their own justifications for economic rents?
A moral justification! You have got to be kidding. There are not even ethical standards for law school administrators. Some law profs like to opine about "social justice." Certainly there is a vocal minority of law prof bloggers calling for reform alone these lines. However, only Congress can turn "social justice" arguments into enforceable requirements.
If members of Congress are interested in raising the level of examination above the issue of gaming reported law school stats, they will need to do so in the context of preparing to pull the rug out from under easy access to debt-revenue financing. That IMHO would be the way for Congress to address the entire ABA-Legal Academy cartel and how it is financed and sanctioned by the federal government to maintain the status quo. If fingers need to be pointed in one direction, that direction is the federal government which has been maintaining a system that fails to provide the basis for affordable legal services to the masses in the context of civil justice. [JH]