Heather Diersen follows up her JDs Rising piece, “Dear Law School, It’s All Your Fault. Signed, Recent Grad,” with, “Dear Recent Grads, It’s More Complicated Than That. Signed, The ABA,” in which she parses an interview she conducted with ABA Accreditation Committee chair, Jay Conison, also dean of Valparaiso University School of Law. Dean Conison made it clear he did not speak on the ABA’s behalf. Frank the Underemployed Professional (Frank), operator of Fluster Cucked, draws first blood by attacking Conison’s credibility: US News & World Report ranks Valparaiso in its fourth tier, implying a severe conflict of interest for the dean.
Diersen organizes Conison’s responses according to three ABA committees (Accreditation, Standards Review, and Questionnaire). I’ll summarize the arguments and accompany them with my numbered responses:
- Accreditation: Echoing former ABA President Carolyn Lamm, the ABA’s hands are tied. If a university wants to open a law school, it is free to do so. If it wants Title IV funding, it is free to meet the Department of Education’s requirements. If it wishes to obtain ABA accreditation (as opposed to state, regional, or none), it must merely meet the ABA’s standards. It’s not the ABA’s job to prevent attorney oversupply.
1). Great! The ABA’s hands may be tied, but its mouth isn’t gagged.[i] The ABA, representing the legal profession, is free to inform prospective law students and the general public that given the job market and the excessive tuition at nearly every private and many public law schools, legal education is not a worthwhile investment.
2). So it’s mouth isn’t gagged; what is it saying then? As of now the ABA has only acknowledged the tuition/debt issue with a bottlenecky chunk on its website wishfully titled, “ABA Economic Recovery Resources.”
B). It also contains Resolution 301, a futile (but thanks for trying) request to Congress asking it to convert private student loans to public loans, increased access to loan consolidation and income-based repayment plans, and amusingly, TARP funds.
C). An article by former ABA President Carolyn Lamm,[ii] “Law School Education Debt Has a Manageable Solution,” with the following two quotes:
The ABA has for many years — regardless of economic climate — advocated for federal laws that would ease the repayment burden on law students who found public service jobs. It’s time to explore creating additional methods to relieve repayment burdens for new graduates or new lawyers who have either been unable to find employment, have had their jobs deferred or have lost their jobs.
Now is the time for modest changes in current federal student loan programs to increase the amount that law students may borrow, and to bring existing private loans into the federal student loan system. [My emphasis]
In other words, President Lamm: (i) didn’t care if private sector lawyers were underpaid for their degrees or were drowning in debt, (ii) approved of financing the tuition bubble with taxpayer dollars, and (iii) advocated “modestly” increasing the tuition bubble with more federally guaranteed loans. At no time did she criticize law schools for hiring superfluous faculty, raising salaries, and then raising tuition. Bankruptcy reform was not up for discussion.
D). And a Statement by Lamm, “ABA President Carolyn B. Lamm on GAO Law School Cost and Access Report,” addressing debt and diversity.
The ABA is committed to ensuring that the cost of attending law school does not become an increasingly insurmountable barrier for many individuals…The ABA urges Congress and the Administration to lift the cap on federal loans to finance law and other professional schools so that all students with talent and desire can attend law school—not only those of economic means. [My emphasis]
If the ABA is so concerned with diversity, accessibility, and debt, it should tell law schools to slash tuition, not ask for more free money from Uncle Sam to feed the tuition bubble.
But the GAO rightly recognizes that American Bar Association Standards for Approval of Law Schools play only a limited role in increasing cost and are not barriers to diversity.
Much more significant in terms of cost, according to GAO, have been the move toward a more hands on, resource intensive approach to legal education, and the competition among law schools for higher slots in published rankings that purport to distinguish between the 200 ABA approved law schools across the nation.
Lamm recognized that rankings dog-piling causes tuition increases, but she not only failed to connect that to ABA accreditation standards (next section, bear with me), but she also didn’t think the situation required warning potential applicants or the general public that law schools valued their reputations over their graduates’ debt loads. Her solution was more Title IV debt-financing because in her mind law schools are entitled to incrementally raise their tuition indefinitely with no regard to graduate outcomes.
In conclusion, even if the ABA’s hands are tied behind its back, its statements on tuition (and silence on lawyer labor supply and bankruptcy reform) suggest it suffers from Stockholm Syndrome.
- Standards Review: This Committee reviews the ABA’s accreditation requirements. Conison touts the proposed changes to Standards 302 and 303 (current standards here, redline to current standards here) to Diersen as the solution to the unskilled lawyer oversupply problem.
1). Standard 302 replaces “Curriculum” with, “Learning Outcomes,” but the substance of the proposed rule merely tells law schools that they may change their curricula to meet their own standards. Nothing in section 302 requires law schools to mark their degrees to the market.
2). Section 303 serves as the new “Curriculum” section, and aside from retaining the ethics and writing requirements, it would require law schools to provide, as Diersen succinctly summarizes:
(i) a simulation course, (ii) a live client clinic, or (iii) a field placement. The theory behind this is that the students will be better equipped to practice law or seek non-legal careers upon graduation.
Again, the problem isn’t just that law schools are graduating students without marketable skills (so much for the GAO’s more expensive “hands on, resource intensive approach” to legal education); rather, they’re graduating students who have few job opportunities remunerated to make their ever more costly juris doctors worthwhile. The proposed rule changes do not prevent rankings dog-piling, nor do they encourage smaller market schools to teach to their markets. Even so, Standard 302 is so permissive that it’s hard for the ABA to deny accreditation to any law school.[iii]
3). Okay. Above, I quoted Carolyn Lamm stating, “But the GAO rightly recognizes that American Bar Association Standards for Approval of Law Schools play only a limited role in increasing cost and are not barriers to diversity.” FALSE. Former President Lamm, Dean Conison, GAO, and Ms. Diersen, please allow me to introduce you to Chapter 4 of the ABA’s Accreditation Standards: Faculty, which incidentally, is not under review. Standard 402(a) states:
The number of full-time faculty necessary depends on:…(3) the opportunities for the faculty adequately to fulfill teaching obligations, conduct scholarly research, and participate effectively in the governance of the law school and in service to the legal profession and the public.
Because we know the tuition bubble functions by expanding faculty and their salaries for prestige, obvious ways to reduce the bubble include: (i) reducing the faculty by allowing higher faculty/student ratios (>30:1), (ii) relaxing the emphases on scholarship and full-time instructors, or (iii) shortening the duration of legal education since so many employers find three years wasteful. Thus, the GAO is wrong: ABA Standards play a direct role in high education costs and consequently are barriers to diversity.
4). Similarly, another way to save costs, reduce the Standards Chapter 6 “Library and Information Resources” requirement. My favorite part of this section is the Interpretation 606-5:
A law library core collection shall [!] include the following:
(1) all reported federal court decisions and reported decisions of the highest appellate court of each state;
(2) all federal codes and session laws, and at least one current annotated code for each state;
Most of these materials are easily Googleable, and law students (and faculty) don’t need access to every single appellate decision across the country. No need for tuition dollars to maintain these collections. Remember how Minnesota’s four law schools are trying to amalgamate their libraries to cut costs? See? One more way ABA accreditation standards make law school more expensive.
5). Still don’t believe me? “ABA’s Bane” Massachusetts School of Law eschews cadres of full-time faculty, keeps salaries down, charges its full-time students $14,989.80 per year, and argues the ABA’s accreditation standards cause exorbitant law school tuition and inaccessibility. Given its frequent law suits against the ABA, it’s no surprise Dean Conison doesn’t mention MSL’s business model.[iv]
- Questionnaire: The ABA requires every law school to report whether it’s fulfilling the accreditation requirements. Diersen writes:
When I asked Dean Conison about the allegations of misleading and fraudulent reporting of employment statistics, he believes the Questionnaire Committee is significantly concerned. During the next year, the committee is considering recommending changes in the law school reporting requirements, particularly in the type of information given with employment statistics…This seems to be what lawyers, students, and the public want most: don’t tell us you have a very high employment rating when a substantial number are not employed in legal-related work but are searching for such work.
Diersen is right that reformers should hope the ABA will significantly improve the questionnaire. There are three problems with it currently.
1). First, it only asks law schools to provide employment information that they already provide NALP, even though we know NALP has no authority over law schools.
2). Second, the ABA doesn’t collect salary information from the law schools. That again tells us the ABA is unconcerned with the juris doctor’s market value.
3). Finally, and most importantly, this is all self-reported, meaning law schools can game the questionnaire just like they game US News’s rankings. Worse, they can outright defraud the ABA, so long as their responses sound plausible. The Questionnaire will have limited reliability until law schools are subjected to independent audits.
Diersen closes with a fear that Frank also laments in his depressing piece, “Why Prospective Law Students Will Never Get the Message”: that the legal profession is broken, and the tuition bubble will not burst. The tides of law students can never be turned away, and law graduates will end up in other fields for want of access to the profession; their law schools will then claim the juris doctor’s flexibility got them there. Diersen writes:
The ABA’s attempts to improve our law schools’ transparency and curriculum may not decrease the number of lawyers fighting to practice. What we can hope, is that those choosing to run in this rat race will do so with more knowledge…I wonder if there are really many people that go to law school without intending to have a legal-related career. It seems more likely that people go into non-legal careers due to economics and opportunities.
When faced with the truth, that the ABA denies its accreditation authority confers to it any real power, and that it mutinies against telling the public the legal profession suffers from structural oversupply, then until Everitt Henry’s lawpocalypse we’re left with the democratic tools Nando of Third Tier Reality advocates:
This is why my goal is modest, i.e. inform people and hopefully we can prevent at least some people from committing financial suicide.
[i] I swear this was Elie Mystal’s metaphor, but I can’t seem to prove it. I know I didn’t come up with it.
[ii] I’ve yet to hear any comment on the issue by the ABA’s new President, Stephen Zack.
[iii] As an aside, the current Standard 303(c) states:
A law school shall not continue the enrollment of a student whose inability to do satisfactory work is sufficiently manifest so that the student’s continuation in school would inculcate false hopes, constitute economic exploitation, or detrimentally affect the education of other students.
The proposed Chapter 3 includes no such requirement, freeing law schools to exploit their students? Oops.
[iv] Incidentally, MSL has opened its own “feeder college,” American College of History and Legal Studies, in Salem, NH. Its undergraduates can apply to MSL as 2Ls, saving them a year of law school—something that no law school has tried because, “Most strong law schools that are well established would be disinclined to try to create such a system because they recognize that their applicant pools are already very strong.” The article fairly notes that the college is still unaccredited, and that MSL’s bar passage rate is 69% for first-time takers, which is below the state average.