Critics of the current legal-education model, including my colleague Elie Mystal, have accused the American Bar Association of failing to uphold sufficiently stringent accreditation standards. ABA-accredited law schools proliferate, even though thousands of law school graduates find themselves unemployed or underemployed.
The ABA was recently chided by the National Advisory Committee on Institutional Quality and Integrity for various alleged deficiencies in the ABA’s exercise of its accreditation power (for example, failure to consider student-loan default rates in assessing programs). Politicians such as Senators Barbara Boxer (D-CA), Charles Grassley (R-IA), and Tom Coburn (R-OK) have also raised questions about whether there are too many law schools and law school graduates, especially in light of the still-challenging legal job market.
The following panelists addressed a standing-room-only crowd at the Mayflower Hotel, where the conference was held:
- Justice David R. Stras, Minnesota Supreme Court (moderator);
- Professor Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, George Washington University Law School;
- Mr. Clark Neily, Senior Attorney, Institute for Justice;
- Prof. Ann Shalleck, Director of the Women and the Law Program, Carrington Shields Scholar, American University Washington College of Law; and
- Dean David N. Yellen, Dean and Professor, Loyola University Chicago School of Law.
Justice Stras, the moderator, introduced the topic by noting that legal education is changing dramatically and will continue to change, with major changes expected over the next 20 to 30 years. Both costs and accountability seem to be growing, he observed.
The remarks of Clark Neily, a lawyer for the libertarian Institute for Justice, would not have pleased believers in a glut of law schools and lawyers. In his work at IJ, Neily litigates economic liberty cases, opposing licensing requirements in such fields as interior design, African hair braiding, and florists’ work. Like Clifford Winston, author of a recent New York Times op-ed calling for deregulation of the legal profession, Neily isn’t a fan of the status quo in lawyer licensing — and, by extension, the ABA’s role in the scheme.
Neily pointed out that only five states — Alabama, California, Connecticut, Massachusetts, and Tennessee — do not require graduation from an ABA-accredited law school in order to sit for the bar exam. The other 45 states do have such a requirement. According to Neily, this requirement simply serves to drive up the cost of legal services and to reduce competition and innovation in the profession.
Moreover, Neily argued, the ABA accreditation requirements do not advance the cause of adequately preparing lawyers for practice. For example, the ABA requirements for library holdings, which can be expensive to comply with, have nothing to do with promoting quality legal education, especially in the age of Westlaw and Lexis. Instead, these onerous requirements are all about protecting the sunk costs of existing, entrenched law schools.
Not surprisingly, Dean David Yellen of Loyola took a more positive view on law schools. He stated that legal education over the past 25 years has become more market-oriented and, as a result of the competition for students, has improved in quality (e.g., with enhanced clinical offerings). Much of this competition can be attributed to the highly influential U.S. News law school rankings.
But the U.S. News rankings have some downsides, according to Dean Yellen. For example, scholarship money has shifted away from need-based aid and toward “merit” aid (i.e., awarding large scholarships to applicants with desirable LSAT scores and GPAs). The fierce competition to rise in the rankings has also resulted in scandals involving schools misrepresenting their data (e.g., Illinois and Villanova).
Dean Yellen disagreed with Neily on the desirability of deregulation (no shocker there), but did echo Neily’s concerns about the ABA accreditation standards, arguing that some are too “intrusive.” In Yellen’s view, the standards should be measured against this inquiry: “Is a standard reasonably necessary to ensure a quality legal education?” Many of the current ABA standards do not fare well under this analysis, he claimed.
On the issue of law school transparency, Dean Yellen did not seem overly concerned. He referred to the hard-hitting articles written by David Segal for the New York Times, which cast some law schools in a bad light, as “despicable” and lacking in nuance. Yellen noted that some schools, like Loyola, go above and beyond the ABA requirements in terms of what they disclose about their graduates’ employment outcomes. And even if a few schools play fast and loose with the rules, this is not unique to law; for example, Ph.D. programs have been accused of inadequate disclosure of job placement information.
Like Dean Yellen, Professor Thomas Morgan also took issue with Clark Neily’s call for deregulation, arguing that the days of monopoly being a problem in the legal services market are well behind us. He also expressed some support for the ABA’s major role in accreditation, noting that having a single accrediting authority is better than having 25 accreditation organizations that would all visit every law school. Having a plethora of accrediting entities would impose a huge burden on schools and be very inefficient.
To start the question-and-answer session, Justice Stras asked the panelists whether the ABA should play any role in keeping the cost of legal education down. He noted that since his graduation from law school, just about a dozen years ago — yes, Justice Stras is quite the prodigy, as reflected by his status as one of The Elect (OT 2002 / Thomas) — the cost of tuition at his alma mater has increased by multiples. What can be done?
Interestingly enough, Dean Yellen expressed the view that some experimentation should be permitted in terms of the length of law school. For example, perhaps true two-year programs — as opposed to the current “two-year” programs, which really just squeeze three years of work into two, and charge the same — could be allowed.
The most provocative question was posed at the very end of the session, by a law student from Tulane Law School. Citing depressing data about the high debt loads and unemployment rates among law school graduates, he asked whether the ABA should exercise more rigor in accrediting schools. In essence, fewer law schools would produce fewer graduates, resulting in enhanced job opportunities for the smaller pool of lawyers.
Dean Yellen rejected that view: “As long as there’s adequate disclosure, who is the ABA to tell a law school to close itself down or to shrink its class?”
Assuming the existence of adequate disclosure is, of course, a big assumption, especially in light of the recent misreporting scandals. And it’s an assumption that will be tested in court, thanks to the proliferation of lawsuits against law schools, alleging that these schools issued false or misleading employment statistics.
In fairness to law schools, however, the case against them grows weaker and weaker with each passing day. With every new lawsuit filed against a school, every new newspaper article or blog post about the dangers of going to law school, and every new call by a senator for an investigation into law school employment reporting, it becomes that much harder for a law student entering the system today to claim that she was duped about the value proposition of legal education.
In November 2011, there is ample information out there, accessible to anyone with access to Google, showing that going to law school can be hazardous to your financial health. If you carefully consider this information and decide to matriculate anyway, that’s fine; there is a case to be made in favor of going to law school (for some people).
But if you ignore the warning signs, only to find yourself jobless and $100,000 in debt three years later, maybe you shouldn’t blame your law school for taking your money, or the ABA for accrediting your school. Maybe you should blame yourself.
UPDATE (11/14/11, 11 PM): I’d like to clarify the three immediately preceding paragraphs. I did not intend to take a position on the lawsuits currently pending against various law schools (although I realize what I wrote could be read in that way). All I was trying to say is that if people applying to law school today, in fall 2011, do some modest internet research, they will come across information warning them against what has been dubbed “the law school scam.” If they decide to go to law school anyway and later regret the decision, they bear some personal responsibility for their fate; the fault does not rest entirely upon the law schools or the ABA. (Whether such students might have valid causes of action against various law schools is a topic I take no position on here.)
Earlier: In Defense of Going to Law School