Garon, J --- "Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings" [2007] LegEdDig 23; (2007) 15(2) Legal Education Digest 8

Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings

J Garon

[2007] LegEdDig 23; (2007) 15(2) Legal Education Digest 8

38 U Tol Law R, Symposium: Leadership in Legal Education (Issue VII), 2006, pp 1–18

American legal education produces tens of thousands of well-trained attorneys who provide competent legal service to the public. Despite our success, the system of legal education is on a path to ruin because of the confluence of American Bar Association (ABA) accreditation, U.S. News and World Report (U.S. News) influence, and Association of American Law Schools (AALS) hegemony. The system of legal education is fundamentally broken not because of the legal education produced, but because of the social and economic cost to the students and the public. The students have too few price choices and far too much debt while the public has legal services that are too expensive to provide meaningful representation for a significant portion of the population. Moreover, as preferred pedagogical and institutional choices have evolved into baseline accreditation requirements, the ability to reach a broadly diverse group of law students has been stymied.

Fortunately, legal education can look back to an earlier period of accreditation to create alternatives in the legal education marketplace. Since accreditation is necessarily a normative process, the task of reorganising the standards and ideals of legal education remains in the control of schools willing to embrace this change. To accomplish this necessary change, I suggest the creation of a National Association of Regional Law Schools (the ‘Regional Association’) which can build consensus around a set of appropriate educational goals that will address the growing economic barriers to justice.

Legal education has been accused of operating as a monopoly to protect faculty salaries, and in an earlier era, to limit access to the profession. It has been described as a cartel, a monopoly, and as a union for law professors. The cartel accusations are inconsistent with the ongoing debate within legal education and contrary to my own observation and experience.

Nonetheless, the structure of the profession leads to collusive conduct which has become anticompetitive in unintended ways. This conduct is the result of the manner in which the competing interests for the practice of law and legal education gain influence on the marketplace.

Despite the Justice Department’s efforts to engage more non-academics in the accreditation process, the role of judges, practitioners, and non-lawyers involved in legal accreditation remains trivial.

Within legal education, the duty for regulation falls upon the deans and the faculty. The deans have the largest and most diverse constituency to serve, and therefore, potentially reflect the broadest range of competing influences on legal education and the profession. These constituencies include prospective and current students; universities; the judiciary and the practicing bar as both employers and alumni; and the committees regulating admission to the bar and practice of law. Because all law schools also operate legal clinics, deans must also be mindful of their institutions’ clients and the legal needs of the public. Finally, because most non-commercial legal analysis and commentary is produced by law faculty, deans are engaged in the assessment of the legal profession and access to justice.

In the abstract, the academic leadership should result in the promotion of the best practices in legal education. This leadership should be charged with maximising the availability of competent legal representation for the public and improving the standards of the practice of law. Unfortunately, the internal and external influences on deans have created a cartel that is as monolithic as any identified by the ABA’s critics.

The first norming factor was the need by law faculty to be recognised at their institutions as worthy equals of their PhD-waving colleagues. The external influence of universities had the effect of creating an external standard for legal scholarship.

A second aspect of this shift has been the rise of the importance of the AALS in accreditation and marketing. ‘AALS is a resource for the improvement of the quality of legal education by networking law school faculty, professional staff, and deans to information and resources. AALS is the principal representative of legal education to the federal government, other national higher education organisations, learned societies and international law schools.’

AALS shares its sabbatical inspection process for member institutions, further blurring the distinction between accreditation visits and ‘voluntary’ inspections far beyond separation.

The third force on law schools is the implicit focus on elitism within the legal academy. Since Christopher Columbus Langdell launched Harvard’s standard of legal education, other schools have sought after the Harvard model because of its pedigree rather than its pedagogy. Further, the vast majority of law school faculty were themselves educated at these elite institutions, making access to alternative educational models even harder.

The fourth and most highly recognised external force for monolithic legal education is the annual survey conducted by U.S. News. Within the ranking calculations, the so-called ‘Quality Assessment’ accounts for 40 per cent of the score, with 25 per cent coming from law school voters and 15 per cent coming from lawyer voters. This again reinforces the elitism of the rankings and the emphasis of reputation.

The fifth externality that reinforces the socially derived legal education monopoly is the accreditation process. Legal accreditation relies upon sabbatical inspections held once every seven years by a qualified team of volunteers familiar with legal education generally, and with particular aspects of the education such as curriculum, library, clinical education, and finances.

The inspection teams and their reports are generally looking for how close a school compares to the elite schools from which most have some experience, and assess program variations from the perspective of those elite schools.

The pattern is clear. Law school faculty members, like faculty members in every discipline, focus on their personal success. Their success is governed in small part by the success of their students, but in much larger part by the salary, tenure, research grants, speaking engagements, and the recognition they earn. In other words, faculty members act in both their own self-interest and the self-interest of their institutions in pursuing elitist standards of scholarship despite the costs to students, the practice of law, and access to justice.

Fortunately, I believe that there are enough faculty members, deans, and university administrators who understand the need for change so that by addressing each of the influences on elitism, those schools which seek a different path can successfully combine their efforts to assert alternative criteria.

Although Yale and Harvard may serve their constituency well, there is a tremendous social cost for society to the extent that the other 189 law schools organise themselves to look like Harvard or Yale. The most obvious cost is money. The 2003 ABA Commission on Loan Repayment and Forgiveness places average law student debt at USD$70,000 to USD$80,000 and at least 20 per cent exceed USD$100,000.

The costs and debt serve as a barrier to enter the profession for those students of modest means who cannot imagine carrying such debt service — typically those applicants from low income families. It places a barrier in front of students who wish to pursue work in fields that are not as lucrative. This forces students to accept higher paying jobs, even if those jobs come with unreasonable billing minimums and difficult life-style choices. The ‘golden handcuffs’ of success on the Law School Aptitude Test (LSAT) sends a student to an elite law school where she does well and must take a job at a large, multinational law firm to pay off the debt service, which frustrates the law student and discourages her from continuing in the profession.

The inevitable consequence of the golden handcuff job opportunity is a 77–81 per cent attrition rate among the law firms after five years.

Another consequence of the cost of law school is the difficulty lawyers have in trying to work in public sector or other less remunerative parts of the profession.

As law transformed itself into a USD$90 billion business by 1990, the room for small claims and small clients has been disappearing from the legal landscape. Even as the law itself has grown at exponential rates, the availability of lawyers has declined for much of our society. Unless the legal profession re-engages the general public, the public will see no need to provide self-regulation or for any need to treat lawyers as more than another big business, special interest group.

Legal education must lead the profession back from the brink on which it now finds itself. We must teach our law students and engage our alumni on the need to address the systemic issue facing the profession. The needs of multinational corporations must be given due consideration, but they cannot be seen as the only legitimate aspect of the profession. The practice of law is not concentrated in the top twenty markets or multinational practice. The range of ABA sections and forums illustrates this diversity, so it is time the law schools embrace the differentiation that exists at every other level of the profession.

The first step in this process is to address those influences that have led to the elitist structure of law school rankings and hierarchy. Legal education was once highly diversified, with widely divergent admissions requirements, staffing structures, and schedules. The ABA and AALS, however, sought uniformity and quality control. In particular, the ABA pushed to eliminate the night school model of practitioner education. The 1960s saw the ascension of the modern accreditation system and the end to unregulated part-time legal education by organisations such as the YMCA.

Some commentators raise concerns about the hidden agenda to eliminate these night schools from the academy. Often, the academic concerns were assumed to be used as a pretext to thwart the aspirations of minorities, based on the religious, gender, or racial population served by these night schools. Other commentators have focused on the risk to the elitism that night schools offered.

While part-time education survives, the pricing differentials have been eliminated through merger, library requirements, and standardisation of faculty, clinics and other student opportunities.

To rectify the situation, a new set of principles must be adopted by a sufficiently strong group of law schools so that the influences which created the current system are minimised, and the schools are inoculated against the poison of U.S. News and the confluence of other forces. In contrast to those who suggest the ABA accreditation is the problem, I anticipate that if the Regional Association is undertaken properly, the ABA will be a vital partner in a transformation which can both legitimise the new association and continue to play its important role as a consumer advocate for law students and the profession. The ABA, however, will need to focus accreditation on the legitimate purposes of the standards rather than on the mechanics or procedures.

The night schools accomplished certain aspects of legal education that we continue to struggle with today.

The night schools emphasised developing a faculty with strong practice experience, ties to the local profession, demonstrated commitment to legal service, and thoughtful writing highly relevant to the community.

Regional law schools have encouraged their students to pursue a broad range of professional opportunities after law school, often serving as the key institutions supporting public prosecutors’ offices, public defenders’ offices, public sector employment, and small law firms.

First, a caveat: It would be antithetical to this article for me to suggest that legal education should now adopt a particular model for all law schools.

Nonetheless, given the problems facing the public regarding access to lawyers and the profession’s need for better professional education, I would suggest that a member school in the Regional Association would organise itself around the following five core principles:

(1) Diversity: In Grutter v. Bollinger, the Supreme Court recognised that law schools may have a compelling interest in attaining a diverse student body.

(2) Price Sensitivity: As outlined above, the legal profession faces a significant risk of polarisation as an ever-increasing percentage of the public cannot afford basic legal services to draft a will, purchase a home, or obtain a divorce. State and federal funding for public defender offices and indigent legal services have similarly eroded in the past two decades. At the same time, the cost of legal education has dramatically increased at a rate far above the rate of inflation.

Through budget restraint, part-time programs, paid internships, and other strategies, the regional law schools can work with state and regional bar associations, state Supreme Courts, and the ABA to address this looming crisis.

(3) Applicable Scholarship: Regional law schools should continue to embrace scholarship and intellectual inquiry as one of the three core obligations of a legal educator (along with teaching and service).

Also important is the practical need for faculty to engage in meaningful scholarship to retain their place at the academic table with their PhD colleagues.

The members of the Regional Association should embrace a broad definition of academic scholarship, one that is gaining respect at more and more universities. In a movement led by Ernest Boyer, four different aspects of scholarship are suggested: ‘the scholarship of discovery, of integration, of application, and of teaching.’ These four categories provide a taxonomy for the broader definition of qualifying faculty scholarship.

(4) Student Learning: Pedagogy, learning methodology, appropriate uses of technology, and other student-based learning approaches should highlight that regional law schools are primarily institutions of student learning. Member institutions have an obligation to work to promote opportunities for students to self-direct their learning and should be measured on their continuing performance throughout law school.

(5) Regional Engagement: Because a regional law school’s alumni base may be closely associated with its domestic market, each has a continuing obligation to its alumni to support their professional efforts.

In addition, regional schools in each market should recognise that there is a professional obligation to support academically the institutions of legal practice. Through close collaboration with state and regional bar associations, the regional law schools can improve the profession. Through close cooperation with the legislative bodies and state Supreme Courts, the regional law schools can add academic expertise, thoughtful research, and a non-partisan voice to public policy. By coordinating and cooperating with the non-profit organisations in each region, the public resources will be improved and student learning enhanced.

The Regional Association is envisioned to promote the commonly held core values, but should not take on any attributes that limit or constrain its members from pursuing programs beyond that core. These goals are complementary to the goals of both the ABA and AALS. They do not reflect a break with the academy, only a renewed emphasis and revised prioritisation. Still, they cannot be achieved within the existing structure.

First, the Regional Association members must work closely with the ABA to assure that the five core principles are identified and valued in the accreditation process.

Second, the ABA inspection teams for Regional Association members should be selected predominately or exclusively from member schools. In this way, the best practices shared by the visiting teams will reinforce the values of the member schools rather than schools with missions unrelated to those of the school being inspected.

Like the AALS, the Regional Association may seek to have an inspector participate in the process for the purpose of writing a separate report to the Regional Association or otherwise consult more formally with the process.

Third, the members of the Regional Association should embrace scholarship on their own terms.

Fourth, a sufficiently strong Regional Association can meet the U.S. News on its own terms. The current U.S. News ranking system reinforces the elitist assumptions that name recognition equates to quality. If the Regional Association creates objective criteria regarding its core principles, then those schools should be willing to hold themselves accountable on those criteria.

Fifth, and most importantly, the Regional Association must actively seek to replace the Harvard/Yale elitism with a desire to be more like the best of the regional law schools. As the Regional Association matures, it must encourage the graduates of its member schools to join the academy and to become exemplary law professors.

The Regional Association will be made up of ABA-approved and provisionally-approved law schools which share a commitment to the institutional core principles. Although AALS membership will not be required, it is anticipated that most members will see the Regional Association as a complement to their AALS membership.

An effective Regional Association has the potential to diminish the influence of U.S. News, create an alternative value to elitism, influence the interpretation of the ABA standards, and change the composition of the volunteer pool available to the accreditation process.

Many of the regional law schools will continue to lead legal education through innovation and programming, developing nationally and internationally recognised programs in various fields. Most importantly, however, the regional law schools will endeavor to balance these demands against the obligations to their region and their students. In this way, regional law schools may differentiate themselves and improve the quality of legal education worldwide without compromising their core principles.