Friday, April 26, 2013

Is Law School Reform Going to Come Top Down or Bottom Up?

Earlier this week, I participated in the ABA Taskforce on the Future of Legal Education (see NLJ coverage here). Ordinarily when I am part of a deliberative meeting of a regulatory or accrediting body, I don't write about it, as it would be a breach of decorum and chill a candid exchange of views, at least prospectively.  But this event was different -- it was webcast live and internet archived, and thus a public meeting. See ABA website.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple

The accreditation system we have created is an anchronism.  But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one -- we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.

To illustrate this point, I am going to share some personal history that I rarely discuss among my academic colleagues because, well, it would never come up in the course of ordinary conversation. Before I went to law school at age 35, I was a firefighter-paramedic for nine years.  For the last five, I served as our Local's union president.  To this day, I proudly pay union days so I can stay retired-active.  

When I look at the ABA Accreditation Standards, I am reminded of Ohio Revised Code 4117, which is the state's collective bargaining law for public employees.  For police and fire, unlike teachers, we had binding interest arbitration for collective bargaining.  What does this mean?  Basically, if we were unhappy with the offer made by the city -- and we always were -- we took our case to a state-mandated arbitrator, compared our wages and working conditions to firefighters who were getting a better deal (the city would do the opposite), and we got a decent wage & benefits increase, every time.  It was not if we would get a raise, but how much.  The teachers, in contrast, had to go on strike.  The effect of this law was not lost on me. My sister was a teacher in an adjacent city, and over time I made a lot more than her.  

This law was in place because those who came before me organized themselves into an interest group, lobbied, and got a favorable law put on the books to benefit them.  My fire chief, Joe Sweeney, was one of those elders -- he would point to the union charter posted in the hallway to remind me that he was one of original signatories.  By forming a union and working for over ten years to pass 4117, Joe and others ended the era of "collective begging." The resulting union wages enabled him to raise six kids and enjoy a decent pension.  And in exchange for that, Chief Sweeney, when he was a captain and later as a chief, demanded, absolutely demanded, that we comport ourselves as public servants.   

In truth, the public-private deal struck by 4117 only advanced the public interest when we had guys like Joe Sweeney who lived and breathed a sense of fairness.  Joe, just through how he led this life, kept several dozen firefighters honest and focused.  As the old guard retired, and our pay kept getting ratcheted up, it became harder to educate the new guys about how this great job came to be.  Many believed they "earned" their positions through merit because, after all, they rose to the top of a competitive hiring process.  So, through the way we behaved, the public interest case for 4117 was made marginally weaker.

I see the the same dilemma when I review the ABA Accreditation standards.  For example, take a look a Standard 405, which pertains to "Professional Environment."  

(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b) A law school shall have an established and announced policy with respect to academic freedom and tenure ... 

(c) A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure ... 

(d) A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership ...

These provisions were the result of the same type of collective action that produced 4117.  And their purpose, just like 4117, is to lock-in privilege.  We academics can offer a plausible justification for this privilege -- for example, without 405(b), writing this essay could cost me my job.  But the fact is we need to justify that privilege through our behavior; otherwise, just like now, we become vulnerable.

At the behest of the ABA Task Force, the formal rules governing legal education may or may not change.  But that is largely irrelevant to what the public, including prospective students, perceive as the value of legal education. And that value is, in the aggregate, quite low.

Reform in legal education is not a light switch.  It is mindset that affects how we spend our time and who we spend it with. If we want reform, well, let's work on it and actually get something done that will inspire others. Eventually it will take hold and take off, with or without changes to the ABA governing standards.

[posted by Bill Henderson]

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After reviewing the meeting online, one thing that was mentioned but not thoroughly discussed is whether the task force or ABA is capable of delivering radical and cost cutting change. Surprisingly, No one ever mentioned the writing of Clayton Christensen, the Harvard Business Professor who is regarded as the foremost expert on disruptive innovation, basically those innovations which increase access and reduce cost of products and services. He even wrote a book about Higher Education and how it could be made more affordable and allow greater access. Christian's research basically comes to the conclusion that incumbent organizations do not and can not produce drastic, cost cutting changes from within, they actually need to go outside of the organization to either buy or create a separate organization that provides the drastic, cost cutting innovations. The incumbent fails because of the invested interests within their organizations, which the economist on the panel actually mentioned as a barrier to what the task force was trying to do. Incumbents can however create higher quality, more expensive options from within, like the mandate for more clinical experiences or credits. So the real answer here is to open up the legal profession and education to non-lawyers, those outside of the profession who could partner with some forward thinking lawyers, as needed, to provide the needed changes. Many of the current law schools will fail, some will become much leaner, but the ones that are run by non-lawyer and lawyer partners will dominate the legal education in time, whether they are located within the US or not. With the progression of Online Dispute Resolution and other disruptive technologies the real question that should be asked as well is will we even need the modern lawyer in the future, and thus will we need law schools either?

Posted by: BCReed | Apr 26, 2013 12:57:27 PM

I agree with BCReed; I don't think the ABA is actually even capable of delivering significant cost-cutting change. Witness, for example, the ABA's contemptuous reaction to full-time distance-learning programs: for more than ten years it's continued to refuse to accredit them for no articulable reason other than a visceral sense that they can't produce good lawyers, notwithstanding the mounting evidence that they can (and at significantly lower cost than brick-and-mortal law schools, to boot).

But I'm not sure that's the fault of the ABA so much as it is that of its membership. The legal profession as a whole lives and breathes an appalling degree of credentialism; it really is one giant Old Boy's Club, and tends to regard anything transformational as a mortal threat.

Posted by: BC | Apr 30, 2013 3:06:43 PM

Given that the two mega-sized higher ed foundations (Lumina and Gates) and Messrs. Simpson and Bowles are all calling for the repeal of GradPLUS loans, all citing law school abuse as their primary motivation, I would say that change will come from outside the profession/academia's control. Given the well-publicized job outcomes (and by implication, salary outcomes) for law school grads over the last several years, I doubt that private lenders would step in to fill the enormous void between the $20.5k annual Stafford limit and the $60k to $80k annual cost of so many law schools - even if they do turn all of those loans into SLABS to sell to pension funds and college endowment managers, which gives colleges an insanely perverse reason to raise tuition evermore. No, if GradPLUS loans go, as so many prognosticators of influence desire, so to will modern legal academia. Frankly, I am surprised that no one - Henderson, Tamanaha, Campos, Merritt, etc - has taken note of these developments. Lumina and Gates basically write higher ed policy in this country (thanks to a big ol' revolving door with the DOE), and they want GradPLUS gone, according to any number of articles in the Chronicle of Higher Education or Inside Higher Ed or elsewhere, and so its days are numbered.

Posted by: Unemployed Northeastern | May 10, 2013 10:36:33 PM

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