Former law dean says ABA is to blame for crisis in legal education

Professor and Dean Emeritus James Huffman of Lewis & Clark Law School writes in this Wall Street Journal editorial (subscription required) that the ABA is ultimately to blame for the skyrocketing cost of legal education and a curriculum that favors theory over practice because the ABA's accredition function was long ago co-opted by self-interested academics who have sought to feather their own nests.

Perverse Incentives of the Lawyers Guild

While law school enrollment drops, ABA rules bust the budgets.

Law schools are in trouble. Applications are down almost 50% to an estimated 54,000 this year from 100,000 in 2004.

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It is a true crisis, and law schools are scrambling to figure out how to manage with fewer tuition-paying students.

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The ABA should start by looking within: The organization is a major source of the problem. Those large law-school faculties with some of the highest salaries in the academy, the palatial facilities, a persistent emphasis on theory instead of practical-skills training, and a limited reliance on online instruction have all been encouraged, if not mandated, by ABA regulations and the accreditation process.

As often happens with regulatory systems, whether governmental or professional, the ABA accreditation process was long ago captured by legal education's most influential stakeholders. ABA accreditation site-visit teams routinely include a dean, tenured classroom faculty, clinical faculty (historically untenured but now increasingly tenured, thanks to ABA requirements), a librarian, a university administrator and one judge or member of the practicing bar—but no students or consumers of legal services.

Given the powerful influence of faculty (the dean and librarian also are faculty), no wonder the ABA rules require that "the major portion" (at least 80%) of the teaching be done by full-time faculty and that all full-time faculty be eligible for tenure or some equivalent "security of position." But having full-time faculty doing the teaching doesn't mean they are doing it full time. Although students are paying the bills, teaching them is only one of five ABA-mandated faculty functions, including law school and university governance, public service, and, above all else, research and scholarship.

For law schools with ambitions for new and better facilities, the ABA rules provide leverage over parsimonious university administrators by mandating "adequate" resources and physical facilities. The threat of lost accreditation always looms large.

The rules demand a prominent role for faculty in the governance of every aspect of the law school, from budget to admissions and faculty hiring. Faculty numbers have skyrocketed, course offerings have exploded to include specialties unknown to practicing lawyers—which is what can happen if mandates mean you have more teachers than you need and no check on their fancies—and teaching loads have steadily declined.

Faculty also benefit from ABA mandates relating to the curriculum and method of instruction. A total of 58,000 minutes (yes, in minutes) of instruction are required for graduation, of which 45,000 must be in regularly scheduled classes. Online learning is thus discouraged.

The ABA's influence over the accreditation process has come at a significant cost to legal educators. In return for the gift of better facilities, greater job security and a job description of their own design, they have had to accept an inevitable proliferation of rules limiting their ability to experiment, innovate and respond to the changing realities of 21st century law practice.

There is a way out. Instead of the one-size-fits-all approach the ABA has taken for decades, what is needed is some creative competition for the declining pool of prospective students.

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