This week I’ll be contacting the administrations of all 200 ABA-accredited law schools, asking them to circulate the Law SchoolTransparency Petition to their faculties. I’ll keep people apprised of what results this effort yields.
Literally every law professor I’ve heard address the issue claims to believe that more transparency regarding employment outcomes is imperative, and that the measures the petition advocates, or something much like them, should be adopted. So why might there still be resistance to signing it?
In a comment, Partner X has suggested three reasons law faculty might refuse to sign: fear of the reaction they would get from their colleagues, too much loathing of this petition’s source, and actual approval of the status quo. Additionally, a couple of anonymous commenters have pointed out that some people won’t sign petitions on principle. That’s true, but it’s worth noting that as of May the faculty of several dozen law schools had voted to sign (that is, they voted to sign collectively as a faculty, not just as individuals, which is a more comprehensive statement than the LSTP asks for) this petition, drafted by Georgetown’s law faculty. The petition protests a proposal before the ABA’s Section on Legal Education which would merely give ABA-accredited law schools the option of not having an established tenure policy for faculty members, and of employing clinical and legal writing faculty without offering them “a form of security reasonably similar to tenure.”
The rationale for opposing giving law schools this option is, not surprisingly, that the mere existence of such an option would “undermine the quality of legal education.” The petition also claims adopting the proposal would damage academic freedom and faculty governance, while impeding the struggle to give clinical and legal writing people the same status as tenure track faculty (Not having an established tenure policy for faculty members in general would actually be the easiest and fastest way to give clinical and legal writing people the same status as the rest of the law faculty, but I don’t suppose the people who drafted this petition considered that option. And while tenure is an important component of academic freedom, the proposed change to the ABA rules raises the very good question of why all law schools should be required to be structured, at least in theory, as primarily academic institutions).
Under the present circumstances, in which a massive increase in the cost of legal education has accompanied a sharp decline in the value of a law degree, for law faculty to offer a consumer protection rationale for not allowing law schools to experiment with lower-cost delivery models for legal education is particularly self-serving. It may be true that the existing ABA standards produce a higher quality of legal education than the average law student would enjoy without them (although there are good reasons to doubt this). Yet it’s also true that if Congress passed the Ricardo Montalban Consumer Protection Act of 2011, requiring all new cars to have rich Corinthian leather interiors, the average quality of new cars would be higher than it would otherwise be – but this certainly isn’t a good reason to mandate leather upholstery in all automobiles.
In addition, to paraphrase Myers McDougal, if you think a good way to enhance academic freedom and faculty self-governance within legal academia is to maintain an absolute regulatory bar to faculties having the freedom to even consider certain alternative structures for legal education, then you have what is called a legal mind.
Lots of law professors may oppose signing petitions on principle -- even a petition advocating something as supposedly uncontroversial as a call for law school administrators to stop cooking the books in regard to employment numbers -- but that principle seems to disappear when there’s some kind of a threat to the guild protections the ABA provides for our jobs. And make no mistake: that’s the main source of the apparently overwhelming opposition to this proposal.
After all, those guild protections are, along with unlimited federally-guaranteed educational loan money, what has allowed law schools to, on average, quadruple tuition (and double faculty salaries) in real terms over the past 25 years, without ever having to justify this mind-boggling cost increase in any other terms than that “a quality legal education is inherently this expensive.”
One big problem with this argument is that, if it’s true, it means nobody got a quality legal education 25 years ago. Of course that argument is preposterous on its face. If anything, given advances in information technology, it should be far cheaper to deliver the same quality of legal education today that law students were getting a generation ago – and it would be, if not for the ABA standards. The primary function of those standards isn’t to protect the consumers of legal services, or even the economic interests of attorneys, but to maintain the massively inefficient and unfair monopoly it grants ABA-accredited law schools to determine who will be allowed to become licensed to practice law, and how much it will cost them to do so.