American Bar Association / ABA, Law Professors, Law Schools, Wall Street Journal

Law Professors Enter A Time Of Consequences As ABA Fights To Preserve Their Status Quo

Once again, ABA regulation is poised to stop the market for legal education from working properly.

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If there was ever an argument for laissez-faire market forces over bad and unhelpful regulation, it’s here where the American Bar Association seems hell-bent on preventing law schools from balancing their budgets in any way other than price-gouging students who are getting too smart to pay.

There’s a trend piece in the Wall Street Journal today, covering something that we’ve talked about on a more granular level, regarding law schools firing staff and sometimes law professors to cope with the declining number of law school applications.

But the ABA, ever tone-deaf to the concerns of the actual law students who have to pay or borrow money to support the broken system of American legal education, is actually in the process of trying to make it harder for accredited law schools to fire professors and control their costs. In a world where the market is saying “we no longer want to pay this much for these services,” the ABA is trying further regulate exactly what kinds of services law schools provide.

It’s madness, but that’s legal education in the 21st century…

First, the trend. If you are a law professor, particularly a law professor at a middle-ranked school, who thinks they are immune to the challenging value proposition of legal education, you better ask somebody. From the Wall Street Journal:

Law schools across the country are shedding faculty members as enrollment plunges, sending a grim message to an elite group long sheltered from the ups and downs of the broader economy.

Having trimmed staff, some schools are offering buyouts and early-retirement packages to senior, tenured professors and canceling contracts with lower-level instructors, who have less job protection. Most do so quietly. But the trend is growing, most noticeably among middle- and lower-tier schools, which have been hit hardest by the drop-off.

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Law professors, famously, tend to think of law as a separate thing from client services. But even though law professors don’t treat them this way, their clients are their students. And their students aren’t getting good value from the services their professors are providing at the price point the schools are charging. Eventually, that has to have an effect on the pay and job security of those professors. That’s simple economics.

At least, it’s simple economics if the market is functioning properly. The American Bar Association, the regulator of law schools since the Department of Education has completely abdicated its responsibilities there, does everything it can to make the market for legal education function like a 17th-century artisan guild instead of a modern exchange of services for cash.

I don’t mean to launch an assault on the tenure system. Tenure is a wonderful thing. It protects academic freedom and encourages deep thought and excellent scholarship. It preserves institutional knowledge. But… does anybody think that Harvard Law School needs the ABA telling them, “You should offer tenure”? Don’t we think that the top law schools in the world will still offer this amazing perk to attract the very best scholars on the market? And don’t we think that many qualified students will still go to these top schools with their tenured faculty to learn in a masturbatory bubble of theory and thought experiments? Let’s remember, law school applications are not going down at the very best schools.

But law school isn’t just about constitutional law and jurisprudence and philosophy. For many, it’s just a trade school. You go to learn a skill. So you can get a job. And the educational strategies that work when you are training the next crop of Supreme Court justices aren’t necessarily the same ones that need apply when you are training the next crop of local prosecutors and civil defense attorneys. Having one set of regulations for the kinds of teachers that you must hire and applying it to 200 different schools — all with different students who themselves have different aspirations — seems, in a word, stupid.

But when has being “stupid” stopped the ABA from acting? From the ABA Journal:

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An ABA committee has voted to recommend that the law school accreditation standards be amended to require that law schools provide some form of security of position short of tenure to all full-time faculty members.

But the Section of Legal Education and Admissions to the Bar’s standards review committee, which met Friday and Saturday in Chicago, also voted to give the section’s governing council–which must approve any changes in the standards–three other ways of dealing with the whole tenure issue:

• One would keep a cleaned-up version of the current standard, which is widely understood to require tenure or a comparable form of security of position for all full-time faculty, except for clinical professors and legal-writing instructors.

• Another would require law schools to provide all full-time faculty members the same job protections, irrespective of academic field or teaching methodology.

• The third would eliminate any job security requirements from the standards altogether.

The committee, which is wrapping up a comprehensive review of the standards, based its recommendation on a straw poll of members following a lengthy discussion of the four draft proposals before it. The poll indicated a clear preference for requiring some form of security of position short of tenure for all full-time faculty members, over any of the other alternatives. The option with no job protection requirements for anybody was the least popular.

Law schools have to pay for two things: buildings and faculty. The fact that they have to pay for buildings in an increasingly online world is also stupid, but a subject for another post. But regulating what kinds of job requirements they have to give to their people unnecessarily increases the cost and decreases flexibility at a time when law schools need fewer expenses and more flexibility.

How, pray tell, does the ABA expect law schools to pay for all these clinical professors who now have de-facto tenure and cannot be easily fired? How does the ABA expect law schools to cut costs in a time when the applicants just aren’t there if they can’t fire the people who represent their biggest expenses? Does the ABA understand the concepts of “money” or “debt”?

I’m usually a fan of regulation, but not like this. Not dumb regulation. Not backwards regulation. Not regulation that seems to look out unto a new and challenging landscape… and then sticks its fingers in its ears, covers its eyes, and says, “La la la la, if I can’t see you, then it’s not real.”

I don’t think a free market is always the best answer, but in this case, I’d certainly like to see the invisible hand slap the s**t out of the ABA.

Amid Falling Enrollment, Law Schools Are Cutting Faculty [Wall Street Journal]
Keep job protections for law school faculty, ABA committee recommends [ABA Journal]

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