The American Bar Association, whose oversight (or lack thereof) of law schools is supposedly in the interest of law students, seems up to its old tricks, i.e., being little more than a shill for law schools. The latest proposal from the ABA is to eliminate the requirement that at least half of law school upper-level courses be taught by full-time faculty.
Where have we seen this before? Basically in all of undergraduate education, where the vast majority of faculty positions are no longer tenure-track or full-time. It would be hard to defend the proposition that the quality of undergraduate education has improved since those moves, and I know of no one who has brought forward data to show it.
What has improved are undergraduate institutions’ retained income. And that’s what’s behind this proposal as well. As law schools increasingly struggle, they are looking to improve their bottom lines and would like the ABA to put a fig leaf on that.
A more reasonable conclusion is a fair number of law schools probably should go out of business. Their employment numbers aren’t very good, the legal profession is changing—itself providing fewer full-time jobs—and the cost of law school tuition continues to skyrocket, leaving a swath of students with unmanageable debt and not much of a career. All that has been written about for years—but nothing has changed, and that’s partly the ABA’s responsibility. It professes to regulate in the best interests of law students and then it doesn’t. It’s even strange, in my view, that there is not a 50% (or higher) requirement for lower-level courses—you know, the ones that are foundational to the upper-level courses. But that battle was lost long ago.
Even the normally sober Law School Transparency project has decided not to object to this latest proposal, on the grounds that “Part-time teaching resources are a real opportunity to bring down the costs of legal education, while satisfying the demands of the practicing bar,” while recognizing that “it also has the potential to create an army of aimless, well-intentioned adjuncts.”
And what do the data show? Do they show that when undergraduate education did the same thing, tuition costs decreased? They do not. Anyone who has attended college in the last 30 years can attest to that. To believe that law schools will limit increased tuition (or even decrease it) in any proportion close to their declining faculty costs is an empty hope and doesn’t recognize that law schools, non-profit or otherwise, are businesses that are interested in making money for their institutions and constituencies already on the ground—the facilities, administration, full-time faculty, etc. If this proposal were coupled with a hard limit on tuition increases, ok. But it isn’t. It’s a giveaway.
To be fair, I don’t think that law schools are quite the same as undergraduate institutions. The difference is that law schools can get practicing lawyers to teach some of those classes. Practicing lawyers can bring much-needed perspective and depth to law schools in a way that the average otherwise unemployed humanities adjunct professor cannot.
Which is to say, that what law schools could do with their adjunct faculty is different and better than what undergraduate institutions can do. Law schools can do that right now; many do, to their credit. But they’re asking for a lot more. Why? Most likely, so that they can and will do exactly what colleges have done—draw from a pool of unemployed or marginally employed lawyers and others because that’s the cheapest labor pool. Not the best but the cheapest. Period.
I am no fan of knee-jerk regulation. Nor am I a legal pessimist—I’m not down on law school, legal careers or their importance for society. My clients applying to law schools do their due diligence and their results, both in law school and their careers, are excellent. That’s because we work hard to maximize merit-based financial aid and carefully consider potential debt against likely employment opportunities (although the ABA’s employment data is little help there). There are no law school “bargains”—but there are some very good values for your dollar, even at current tuition levels, for those dedicated to the law.
There are also some awful values. The point of a regulatory body should be to maximize the good values while minimizing the awful ones. On this measure, it’s hard to see how the ABA can claim much success. If you’re going to say that you are a regulatory body protecting the interests of law students, then you should actually be that, rather than leaving the impression that there is effective regulation when what there is is a strong bias toward the entrenched powers, including law schools. The one-time players, i.e., law students, are left out in the cold while being told that they are being warmed by ABA protection.
by Kyle Pasewark at Advise-in Solutions on February 17, 2019.