Failing Law Schools - A Moral Disaster: An interview with Brian Tamanaha


Uploaded by MSLawdotedu on 01.08.2012

Transcript:
welcome to books of our time
brought to you by the massachusetts school of law and seen nationwide
today we shall discuss failing law schools a new and much noted book about
problems in many law schools
the book's author is brian tamanaha
formerly the dean of saint john's law school and now a professor at the law
school of washington university of saint louis
usually my guest joins me in the studio at the massachusetts school of law in
andover massachusetts
because scheduling difficulties made this impossible
the interview was being conducted with professor tamanaha in saint louis
and me in andover
and i am of course the regular host of books of our time
dean lawrence r. velvel of the massachusetts school of law
so brian thank you for for being with us
and let me uh... begin
by asking you to explain in broad terms
why you think law schools are failing
the cost of obtaining a law degree today is far out of proportion to the
economic return on the decree for
uh... the majority of students so let me go give you a few statistics that
demonstrate that
the ABA recently released statistics on the class of two thousand and eleven
uh... nine months after graduation
only fifty five percent of graduates of law schools nationwide
fifty five percent
had obtained
permanent full-time jobs as lawyers
meanwhile the
uh... average debt of law graduates upon graduation
was over a hundred thousand dollars
now the problem is not just that they're significant numbers of unemployed
graduates it's also that many of the graduates who do obtain
legal jobs don't earn enough
uh... to make the monthly payments on the average debt
in your book
uh... you present in detail
quite a few reasons why this unhappy situation
uh... has arisen
and while I presume
that uh... people are not arguing with the statistics
that you just presented
what has been the response so far at least
uh... to your views
uh... of the reasons why this situation has come to pass
uh... well first uh... let me say some people are denying
the argument I'm making that a law decree is a highly risky investment
uh...
in our recent article in the national law journal for example the current
chair of the a_b_a_ section on legal education
suggested that my uh... that i was exaggerating the situation
uh so there are defenders of the current uh... status quo on legal
education
they also suggest that i fail to take into consideration all of the
non-financial benefits of having a law degree
uh... and one of the points I to try to make in the book is that
uh... you can acknowledge that there are many benefits to having a law degree but
if you can't make the monthly payments on your debt then you're in financial
trouble and i
try to focus in the book on that
uh... I should say i haven't
heard many responses in detail to the book yet
uh... but in terms of the causel arguments i i haven't had many responses
so far
the basic argument i make is that
the economics of of legal education have gotten out of whack essentially because
tuition has gone up every year for over three decades and i mean every year
and meanwhile pay at the for the bulk of lawyers has stagnated the the
corporate law
legal market
pays gone up quite nicely in that respect and people who obtain those jobs
are doing fine
uh... but the pay for the bulk of lawyers has not gone up
and as a result with a they now pay much more and yet the economic return they've
been getting has not gone up uh...
to keep pace with the rise in tuition
that's the basic problem
uh... as i said i i haven't heard too many responses i expect there will be
critical reactions to the arguments i've made
but thus far i haven't heard any
the book is very uh... east coast centric
wall street centric one might say
uh... but that would include a you know the corridor from charlottesville virginia
up to new england it would also include
the university of chicago and michigan and northwestern
and then uh... the uh... argument goes it's it's sort of leaps the country kind
of like
the new yorker's view of the country uh... you know that
cartoonish thing it kind of leaps the center of the country to the
west coast
and in short
the uh... the problems that you see with regard to
uh...
cost and availability of jobs
don't exist to the same degree everywhere
what is your view of that criticism
well the statistic I gave that there were fifty that only fifty five
percent of the graduates obtained
full-time permanent legal jobs that's uh... that's a nationwide statistic
it's not focused on any particular area
uh... but it is true that many
very expensive law schools are located in
large urban areas the uh...
law schools in new york city for example as well as boston as well as chicago and
l_a_
are the most expensive
and so
the the debt that students at these schools come out with are much higher
uh... when i said the average debt of graduates nationwide is a hundred
thousand need to emphasize
that that
the ten most indebted schools the graduates from the ten most indebted
schools had debt over a hundred forty thousand
and all of these schools are in major urban areas many of them actually are
are schools in l_a_
uh... chicago and new york
schools in these urban areas are the most expensive the debt of their
graduates is the highest
uh... and it's also true that
that their states flagship state schools which i mention at the end of
the book as
as the last remaining affordable corner
within accredited law schools
many of those schools their their tuition is fifteen thousand
dollars a year the average debt is fifty thousand and i suggest that these these
schools are actually working well that's the impression i recieved both from
your book and from hearing people
who uh saw you and william henderson speak at a conference recently
and i was very pleased to hear it because
given the fact that uh...
much will be said on this program which is critical of law schools
I feel an obligation to our own school and to my faculty to point out that we
were
among that latter group that you're talking about that uh... having much
lower tuition and students come out with much less debt
having made my reverse mea culpa as one might say
uh be that as it may
you take
the position
the poor and the middle class if this continues are going to be shut out
from a traditional avenue of social and economic ability mobility and from a
very important part of this power structure of the country maybe you
could elaborate that
sure i i i think there's no question that that is one of the
worst consequences of the current situation in the book i focus
uh... on the consequences to individual debtors
but they're also social consequences erecting such an enormous economic
barrier to access to the legal profession so let me again give you some
numbers
private law schools
the tuition at accredited private law schools
ranges from about thirty five thousand to just over fifty thousand dollars
a year
uh... in addition you have to consider living expenses
uh...
cost for books and so forth which at many schools
approximates eighteen to twenty thousand dollars a year
if you add that up the cost of a legal education at a private law school
totals between a hundred fifty and about two hundred thousand dollars
now obviously this isn't only about the poor middle class people from
middle-class families can't afford it as well we've been unclear around here whether
those figures you're citing
are for law school alone or whether they include debt for college too
the debt figures i use relate exclusively to law school
to which one would also then have to pile onto college debt that's correct
okay go ahead and the average debt of college graduates today
is about twenty five thousand so whatever debt numbers I give you
you could add five thousand on top of that
the cost of a
of education at a private law school the total cost ranges between a hundred
fifty and two hundred thousand dollars today and
that actually begins to inhibit even middle class people so I'm not even
talking about the poor I think
they've always been in a difficult position
uh... so
the long-term social consequences of this i think are quite significant
there's one other element of this that matters and that is the legal profession
in particular is a very elitist
profession
and what i mean by that is
uh... people in law pay attention to credentials and where you where you got
your law degree from and the best example we can point to today is our own
supreme court
which has uh... graduates of harvard and yale
number of uh... graduates from harvard on the supreme court
throughout history and its it's adds up to a bunch of schools combined
so it's not just that the costs of becoming a lawyer is is getting higher
and higher
but the cost at the most elite schools is the highest of all
and as a result it seems not just that we'll have uh... more and more lawyers
from the wealthy class but more and more lawyers controlling elite positions
within our government
uh... within corporations will come from the uh... the wealthiest class
I think the exact figures are that on the supreme court
six lawyers
uh... six justices are from harvard
and uh ruth ginsburg was from both harvard and columbia that's right yes
and three are from yale
this means that two schools essentially
are exercising control total control at the very top of the profession
and there's no question i think that it's the most elitist oriented
profession in the country i have read engineers who
find it unbelievable when they when they read about
the degree of elitism and seeking of prestige in the legal profession
and that's engineers no less but I take it that is the reason why
uh... you say that
nobody gave a darn about the situation
until it started to affect and
afflict i guess one could say
uh... the schools like harvard and yale
yes the oversupply of lawyers the number of graduates that we've been putting out
exceeding the number of available positions
has been with us at least for ten years i trace it back to two thousand and
one
i can't I couldn't go back earlier because they changed the way in which
they they counted
uh... compiled the statistics but essentially since two thousand and one
we've graduated over a third more lawyers than there were positions so
unemployment unemployed lawyers range from about sixty five percent to about
seventy percent unemployed recent graduates
uh... but no one said anything about it and no one said anything about it until
the contraction in the legal market which hit us uh... in two thousand and
eight
and when that contraction hit uh...
that uh...
people that were suffering were people from elite law schools uh... they had
their job offers rescinded they had their starting dates put off for
six months to a year
and it's when that happened
that
uh... everyone began paying attention isn't there some
similarity
uh... a problem in the medical and dental professions which is
too many graduates chasing
the same kind of job
in to few places
meaning the big urban areas where big law is practiced
and ignoring the rural and middle parts of the country uh... the dental profession
also had an over supply problem and and to deal with it they actually closed
uh... a number of law schools including georgetown's
that's correct
and so
uh... we've not done that we've had an over supply problem for as i said at
least a decade and i believe much longer
part of the problem has to do with the argument or the belief that a law degree
is a versatile degree and certainly legal educators
constantly say that that you can do many things with a law degree it doesn't
mean you have to be a lawyer
uh... that's in contrast to a dental degree which you are either a dentist
or you're you're not doing anything
uh so this is a big difference that in in medical schools and dental schools
they've managed to match the supply with the available positions
uh... you're also right that a part of that is encouraging people to go and
serve underserved areas
it's not clear to me that we have that same problem in law I mean there are certainly
towns that don't have lawyers but it's
part of the reason is because they these towns the people in these towns don't
have enough money to afford lawyers
so bringing a lawyer there I'm not it's not clear to me would would work
economically now part of the reason it doesn't work economically is because our
recent graduates have high debt
so they cannot afford to serve the underserved the uh... the low end
legal market
one of the uh... perverse things i point out in the book is that
we have at the same time a substantial oversupply of lawyers law graduates to
jobs and yet substantially underserved legal needs
the legal services corporation comes out with a with a report
basically every year
documenting uh... huge numbers of unfilled legal needs uh…in a recent report
that they said that they turned away one million
about one million people who otherwise would have qualified
for their legal services but they didn't have sufficient manpower to
do it
for a lot of people
some of whom do become practicing lawyers and other others of whom do not
going to law school is
well i i don't know how else to put it it's a dream come true
historically the the legal profession has been a path of
of upward mobility
uh... often uh... from immigrant families second-generation my own family
comes from okinawa
and i was the first lawyer in the family
uh... and uh... as you say it's not just about finances it's also about status
but it's about much more than that
lawyers uh... participate in in local government uh... lawyers as you
said become politicians
uh... in various ways uh... lawyers have an impact on the community
and uh... i am concerned that
that the economic barrier to access to the legal profession that we've erected
will have social implications beyond
what i what we're talking about beyond just what it means to be a lawyer and
pay the bills
i couldn't agree more with you i mean it's
there's a whole avenue of social mobility and economic advancement
being closed off
much of the problem apparently
has arisen because
a couple of organizations
managed to to uh...
obtain a tremendous influence
uh... over accreditation of law schools
and uh...
if i understand your book correctly and twenty years of my own study
uh... they use the accrediting body
which is the a_b_a_ section of legal education and admissions to the bar
to uh
to require universities and law schools
to do a lot of things which ended up increased increasing costs
dramatically
now now these three organizations two of whom you mentioned are the american bar
association and the association of
american law schools
uh also the law school admissions council
now can you explain a little bit
about how these three groups sort of coordinated themselves and
and sometimes have been called the big three of legal education you don't use that
phrase
can you explain as I say just a little bit about how this
cooperation
uh... came into existence and what it's meant
the ABA and the AALS
together have essentially regulated law schools the AALS through its own
set of standards and the a_b_a_ through its set of standards but
I should emphasize that
many of these are the same people they
circulate through these positions
uh... in the book i focus on the fact that
late in the nineteenth century early in the twentieth century
the school men the the people in the law schools
were unhappy that the a_b_a_ didn't have a particular body focused on law school
so as a result they
created two organizations one is the a_b_a_ section on legal education and
the other is the
uh... association of american law schools
essentially to regulate law schools
uh... in a way that
uh... in my view ultimately had
uh... the interests of legal educators uh... uh...
if not foremost in mind then at least equal
to the interests of creating uh... institutions that train uh train lawyers
and when i say that
i say that because the standards uh...
incorporated
elements that focused on
on academia uh for example uh...
standards related to teaching loads standards and interpretations i should
say some of these were not official standards but they were interpretations
put into the standards
um... they also focused very heavily on pay uh... initially
on the pay that law professors earn now
when these when these provisions were written in they were always written in with
the justification that it was for the good of training lawyers
they didn't say that it was for our own good that we want to teach less that we
want to earn more
their arguments where that if you don't allow us to earn more if we don't earn
more we won't have as
law professors who were any good
we won't be able to attract law professors and that if you don't allow
us to
uh... if you require us to teach too much
you won't have scholars
and to to teach law school we need scholars to teach law school
uh... i would say that the uh...
legal academics have wanted to be treated
uh... as academics for purposes
of what they do in their job
and as lawyers for purposes of how much money they make
and you have some figures in your book
which even I as jaded as i have become in twenty years found absolutely
staggering
about uh... law professors at some schools
many of them making
in the three hundreds
and even though they're department of justice as you again point out in
your book and you've pointed out here
told them to stop this
price-fixing of salaries the mindset had been built in
and things have just continued on apace maybe you could explain very
briefly
the process that was used by the accrediting body
to insure that salaries
went ever up
and let me say that i think as a result of your book brian i read
the book by thomas morgan which you cited was
was saying you know we must get salaries up because
otherwise we'll have inept law professors and he cited what the
salaries were in those days
and they were staggering they were as staggeringly low as the salaries are
staggeringly high today
maybe you can just give a brief
a view of the process that was used to uh
to get salaries up
i think the most current picture of of faculty salaries can be gleaned from
university of texas
uh... the dean of university of texas was recently fired essentially out of a
faculty revolt over salaries and
and monetary uh... awards the professor's were getting and
i guess some of the faculty thought it was unfair so they filed a public
information request
so the faculty salaries for texas were posted online and the the numbers are
shocking
nineteen
professors at
at at texas earn over three hundred thousand dollars
another thirty-five professors earn between two hundred and thirty and three
hundred thousand dollars
in addition to that i believe it was twenty professors received one time
grants
in the form of forgivable loans
ranging from seventy five thousand dollars to over three hundred thousand
dollars
uh... in addition the dean himself got a one-time grant of five hundred thousand
dollars now these
grants came
came from the texas law foundation which is a very wealthy foundation but
nonetheless these are forms of compensation
uh... so
we're talking real money here uh... and
uh this is texas i assume that the elite law schools uh
top five law schools are in the same kind of money's in play
they're two different sides to this
uh... one is the low end salaries salaries at most law schools and then
one are the salaries at the high end law schools
at the low end law schools the the the impact of the a_b_a_'s most
direct the a_b_a_
provisions eventually
said that
uh... the and again these are more the interpretations rather than the
standards but they're also official interpretations they they were
written into the body of rules
uh suggested two things one is that any school below a comparable median and
by that they would compare to other
like situated schools
any school at which the salaries were below
comparable median raised questions about the sufficiency of the compensation
and then there was another provision that said any school at the bottom is
presumptively in non-compliance
so the operation of these two provisions was essentially to ratchet up salaries
on the bottom because there's always some law school at the bottom
so the argument is we're at the bottom or near the bottom we're not in
compliance and they're always half of the law schools at any given time below
the comparable median
so through these provisions
uh... after doing accreditation inspections reports could be written to
say that your the faculties are uh... not being appropriately compensated
and in fact this was open knowledge at the time i i quote dean
cass of B.U. saying on looks like these accreditation visits are really about
trying to prime more money out of the dean
the law school dean for the faculty and then trying to pry more money out of the
university
uh... relative to the faculty
uh... now all of those provisions have been taken out uh... but nonetheless it
had a ratcheting up affect and that that affect continues today because
those the the new levels of salary
uh... subsequent raises are often based on percentage of existing salary for
example and and new hires come in and are pegged on existing salary
so that lifted up collectively the bottom half the lower salaries at the
lower range law schools
that doesn't explain the extraordinary salaries that are now being obtained at
the top law schools
what explains that and now I'm talking about harvard yale michigan
essentially is competition for star professors uh...
law schools have really now engaged in recruiting wars for
more than ten years about fifteen years
uh... even longer actually and this relates to our
extraordinary chase for prestige law schools are now
competing in
we often say this is about u_s_ news and and indeed it is but
it's also about the fact as i mentioned earlier that that legal
academia the legal profession and generally but I want to emphasize legal academia
in
particular
is very elite oriented very prestige oriented
and we sort of had this frenzy about recruiting professors and
one the the common ways to recruit professors
are to offer higher pay and to offer lower teaching loads
a few years ago
uh... the daily cavalier of the university of virginia which is the
school's the undergraduate school's newspaper
found out and published the salaries of
of all the professor's at the virginia law school this is
public information somewhere in the secretary of state's office perhaps
and brian i have to tell you
not just that i was astounded at the level of salaries
but i was astounded at the fact that some of the most prominent
and uh... well-known and prestigious professors
persons whose names I had known
for twenty five and thirty years
were among the lower-paid
persons on the faculty
the goodies went to the people whom the university was trying to hire away from
elsewhere
now they just
brought up the rear and that's just the way it was
when you point out that there's been this mad competition for
professors
these are
basically as I have always understood it I
think your book says
the same thing pretty much
are research oriented professors
and that leads to the question of
number one how does one get to be a prominent aside from the fact that you must write of
course
or at least type
uh... how does one get to be
a prominent research oriented professor professor
and why the extensive stress on research and is this of benefit to the
students
to become prominent you have to write and and what you write has to obtain
recognition
uh... but not all things are
are equal and again going back to the fact that we are a elite
prestige oriented industry
uh...
professors at at elite schools have have a much easier time placing their
articles in elite journals
uh... this has been known for some time including several studies that
i believe one in particular sent the same article to on two different
letterheads
and using an elite letterhead obtained all kinds of acceptances and uh…on non
elite letterhead and didn't get any
so this is well known but but even having said that there are elite professors
ther're professors at top law schools that aren't well-known and don't do very
much
so the quality of the work has to be there the quantity of the work has to be
there
uh... and and you get recognition i in that way
i think the the bottom line is that
we see ourselves as as academics we like emphasizing the academic side because
it's that that gets us
lower teaching load it's that that gets us tenure
lawyers don't have tenure
uh...
and
uh... it's in our interest to do that now i don't want to just
makes make this a matter of cynicism I mean there are many law
professors that genuinely are academics that have an intellectual turn of mind
i'll give myself as an example I've now written seven books
on matters of legal theory by the way I don't
right on the economics of the legal profession
uh... I do this job because i love it
however uh...
the problem is we've become so academic that it's become to the exclusion of
recognizing our role as as training lawyers
and an example of that uh... can be seen in our hiring patterns in recent years
uh...
the the law schools have begun hiring people with p_h_d_'s in other fields
now it's fine to have advance education in another field the problem is that
this comes at the expense of them
having any experience in the legal profession itself
developing some knowledge about what it means to be a lawyer
because the vast majority of our students are actually trying to get jobs
as lawyers
so we're becoming even more academic uh... again
not because my problem's not because it's not good to learn more
but because it comes at the expense of of
knowledge about what it means to be a lawyer
in
previous generations
a generation ago i should say
uh... uh... it was also the case that
professors at elite law schools
had relatively little practice
but at law schools nationwide generally professors had
had some practice experience i worked as a public defender for example before
becoming a professor as well as
as a lawyer in a developing country and i thought that was necessary
uh... to for my own sake to actually know somewhat about the what it meant to be a
lawyer
and i think that was a more prevalent attitude
now it's coming to the point where people feel that if you practice too long
you become tainted in some way that makes you not well suited to be an
academic
and this is when i think our priorities have really gotten uh...
uh... out of whack that we've become so academic that we're almost anti lawyer
and it's a bizarre
place for for law professors to occupy because
in fact our students pay a good sum a huge sum
to learn how to become lawyers and
the idea that somehow this is not
a priority of ours i think is just really where we've gone wrong
quick little story in support of your view
there was a wonderful guy named howard glickstein who was the dean for many years
at the touro law school
and he came to the academic world in perhaps his early forties or so
after a
reasonably prominent career in practice
and uh he found
uh... when he was seeking a job in the academic world
that the fact that he had been a very successful that he'd been a
practitioner and a very successful one particularly in the area of civil rights
where he specialized
that was regarded as a mark against him
as a disqualifying factor
and what can one say 'cause howard was a wonderful person a fine dean
and
I must say it's almost as in medical school
the professor's never were anything but
research oriented biologists and endocrinologists and so forth and
instead of as in the last two years uh... when medical students
having gone through two years of mainly exclusively academic work
now start to be taught by people who keep hand a hand in the practice of medicine
and you know they go around with doctors etc et-cetera
we have the legal
academy has been quite a bit differently
from the medical academy
you've explained the salary
uh...
the method the methods by which salaries were ratcheted up
maybe we could discuss just a few hours a few other of these rules that have like
ever higher salaries
contributed to higher costs and therefore to higher tuitions
uh... you mention extensively in the book the hours of teaching per semester
maybe you could elaborate on that
i don't believe the rules had that much of an impact the
there was a provision that suggested an eight hour maximum
uh... ten hours if your double if you're duplicating courses but
most schools weren't exceeding that and and don't today i think the real problem
is uh... or or the cause uh... uh... has simply been action on the part of law
professors and the AALS in particular i don't mean the a b_a_
to to pay attention to how much law professors teach
and uh... as i say in the book uh... in historic historically for much of the
twentieth century
a standard teaching load would be about fourteen or fifteen credits
sixteen at some and even higher at a few law schools
uh... whereas today the the
standard teaching load is now about twelve credits and and actually it's a
bit under that that's per year not semester that's per year right
so now now it's basically six hours per semester
previously it was seven or eight
per semester now this makes a difference because
essentially we teach one one course uh... less than most law professors taught
most of the century
uh... now this matters because if if law professors teach less courses you need
more law professors overall
to uh... to have the same course coverage
now this is i'm just giving you the average load at elite law schools
they now teach between eight and ten credits a year so
it's even less than that
uh... and this has contributed to the increase in in the in the cost of law
schools because law faculties have expanded
uh... we now and one sign of this and we've expanded not just because of more
research we also have more clinical professors
we have more legal writing professors
so the uh...
the number of students per lawyer's gone down
per professor's gone down from about twenty five to one to about fifteen
to one
uh... the ratio of uh... professors to students
one of the reasons we have
uh... more i would say many more clinical and writing professors
is that at least
as to the clinical part of it
probably not the writing part of it
but after the critical part of it
the uh... traditional law professoriat
is as i think you've mentioned
before here
not equipped to teach it because they have no experience with it
yes many professors there ther're still professors with practice
experience but
indeed
professors who have
gone from a
grad gone from law school to a clerkship in one year and a firm and then
obtain a position as a professor are not are not
equipped don't have the
and and they have no interest in teaching writing they could but they have no
interest in it
and uh... nor do they have an interest in teaching clinic so
these were uh... law schools were lacking in skills training and and we
solved the problem essentially by hiring other people to
to do it to take care of it
helps explain the expansion of clinics and uh... and uh... legal writing
positions
which creates as you said a need for many more professors which jacks up the cost
which jacks up the tuitions
yes maybe you would explain
the student faculty ratio and its effect
including i might say that
this always
boggles me
the student faculty ratio has
i think nothing to do with the number of students who sit in a classroom
'cause there are schools with low student faculty in other words ten to one which
is a lot of professors for each student
and they have classrooms filled with a hundred and twenty and a hundred and fifty
people
but but maybe you could explain the rate at the ratio how it was used
and what it meant
well initially it was used
through again through the
accreditation process
to suggest that if the ratio was too high if there were too many students per
faculty
that the law school wasn't being staffed sufficiently
uh... but in recent years that's not really been the main driver of it one is
that u_s_ news measures student faculty ratio it's one of the factors they look at
uh... but
really the main i think the main driver of it um...
has been this
really just institutional expansion that that law schools
about fifteen years ago
uh...
uh... what i call it was the harvard affect harvard decided to expand
and
when harvard does something many law schools follow
and it's remarkable to see i found a host of
law faculties announcing a major expansion of the faculty even after the
contraction of the legal market notre dame announced that it would increase
the size of the faculty by twenty five percent
this is really about institution building
about the idea that we get bigger if we have more professors we're
better
and as i say
institutions began stockpiling legal talent
now this is one piece of it the other piece of the expansion is that we were
woefully
doing a
poor job of uh... training students and
and and we expanded the clinical offerings as well
uh...
but really it's about not having any kind of attention to the economics of it and
exercising no restraint
and because more professors cost more if they cost more you need more students
and you need higher tuition to pay for it
and there was a kind of loop in which
uh... we haven't mentioned but the the number of graduates have gone up
essentially every year and it's being driven
the number of graduates as well as the tuition
by now it is a voracious need to cover our expenses
as faculties expanded you need to increase your revenue faculties are the
major budget item
on law school budgets
i was really surprised when your book points out
that harvard from i think you said two thousand until today
increased the size of it's full-time law faculty from eighty to a hundred and
twenty yes
and all i can say is it works for elena kagan 'cause she's on the supreme
court now
but i don't think that should be the criterion
how about rules regarding libraries and the size of libraries
and the contents of libraries the ABA specifies and again this is
this goes way back to uh... to the beginning in which they were writing
writing standards that focused on us being academic institutions
and one of the requirements was that we have
significant library collections uh...
now what first brought my attention to it is that when i was uh... interim dean
at saint john's we happened to be going through an accreditation
re accreditation visit
and the the school was operating fine and yet there were objections about
about the not the size of the collection so much but the staffing and so forth
and
it was at that point that i
began to look more carefully at how this accreditation process works
uh... you know they
i think the right word to say is that although people were were well-meaning
uh... on these accreditation committees they lost sight of the objective of the
rules that is to ensure that you have a
uh...
an operation that's training sound lawyers
and instead looked at what deans have called output measures you know how many
volumes do you have how many employees do you have what are their salaries
uh... and um... and this uh... this occurred in connection with libraries this
occurred in connection with facilities with buildings
how nice is the building is it suitable to the to the size of the student body
this is more and more problematical because
starting about about perhaps eight or ten years ago
on one would have to begin to question
whether hard
copy libraries
almost
are even necessary
now i i love books i read books all the time I write reviews I conduct
television shows on them
and you know i'm probably a throwback to the uh to the nineteenth century
but uh... today
virtually everything
that most lawyers and most professors need are on the internet
that's just the way it is
and a library could essentially be for all but the but the research schools
where people do arcane research
it could essentially be a small room with a bunch of computers that covers the
form in a sense the for formally stated rules and my question is
to what extent if any
were the problems created
not by the rules as written which sometimes on their face seem
reasonably innocuous you know you shall have a a competent building yeah well who could argue
with that
but but uh...
but by the way the rules have been enforced
in a process
to put it nicely is kept confidential
is kept secret would be a less nice way to put it
yeah i think actually the the process was
was more important than the rules if you look at the rules themselves
they don't explicitly require some of the things i'm objecting to i mean
there's language there that provides a basis for arguing from it
but what what the accreditation process involved was essentially legal educators
groups of legal educators going to law schools
uh...
faculty members at those schools uh...
putting together
essentially plans for the school in which
they were able to work things that they desire
into the plans in and when communicating with the site inspection
teams
and the site inspection teams would then write these up in the reports and by
that i mean
uh... the the inspection teams would ask about how much research have you been
doing how much support are you getting for the research
the the provision the ABA provisions didn't say you have to pay for research
they suggest that
law school should engage in research and support faculty research but it
they're not explicitly requiring you must
you must uh...
provide sabbaticals paid sabbaticals it doesn't say that in particular
but it was interpreted that way
and the reports would then
uh... raise objections if faculty research wasn't being supported
uh... so
in my view the the the the culture that revolved around the accredidation
process
was much more
important than the actual rules themselves
in bringing about
uh... conditions that law professors wanted
for ourselves
and again i don't i don't mean this to be entirely cynical i think people
genuinely believe that
that these are all good things for law schools
law schools should have
ample research time we shouldn't teach too much it's not good
uh... so they genuinely believe these that these were good things
and that through these beliefs reports were written in a way that required law
schools
to to
to do these things
uh... so it's not just about the rules i i think you used the right word if you just
read the rules they seem quite reasonable
it's about how the rules were interpreted and applied
utilized in the reports that were written
to impose things that that the rules themselves did not necessarily require
i have always been of the opinion
that there was one person assisted by
a coterie of others
who fundamentally ran this show and was heavily responsible for what happened
now without mentioning names would you agree or disagree with that
i'm not
a law school insider
and uh...
you know much of my research just comes out of publicly available documents
my experience with the accreditation process was on the receiving end as the
interim dean as i suggested
i know many people who have engaged in site inspections
uh... and i've heard many rumors about uh... what you're referring to but i
don't know
I don't know about it from my own personal
I'll tell you one thing that's a fact and it's something attributable to
a person whom i regard as a member of this coterie who was a very famous
person in new york city
and if I go beyond that that uh... he will become very easily identifiable
and he said and he was also a very uh... famous person in ABA
accreditation he said
there's not going to be a honda law school
and you know we thought that said it all there is not going to be a honda law
school you can't have a low price competent school
I mean competitive pressures
uh... were uh
were against that in the in
nineteen ninety five and nineteen ninety six
uh... that uh... the uh... american bar association
uh... on behalf of its accrediting arm
uh... entered into a consent decree with the department of justice which brought
an anti-trust case
uh... i guess i have to concede at our instigation 'cause we went to the uh...
department of justice
and then you point out that the ABA
uh...
to my
amazement surprise shock
use whatever word one wishes
uh... proceeded to violate
that consent decree uh the main violation was that the
the committees were supposed to be staffed with people out not just legal
educators that was a part of the problem
the charge was that
that legal educators captured the accreditation process and mainly because
we were the ones going out and
and doing doing these things and sitting on committees that would make these
decisions
and uh... so they were supposed to bring in uh university administrators lawyers
to participate
and the ABA was not
following those
the the terms of the consent decree
uh... why the a_b_a_ did that i i have no idea i think it was
was it's it's inexplicable to me
that they wouldn't
uh...
make a an effort to comply with the letter of of this
decree we actually agree you know uh...
uh... i don't think you've uh you've investigated this 'cause it just wasn't
your interest
but uh... i can tell you that
the person who was put in charge was the
a_b_a_ general council who had overseen
the section when it was doing all the bad things that it was supposed to stop
and then one thing the a_b_a_ did which uh...
we explained it to the department of justice but frankly speaking it didn't
care
is that when the a_b_a_ put non
non-professors non academics on these committees
that quite often were judges or lawyers
who had been academics
had sometimes even been a_b_a_ accreditors
that who obviously agreed with what the uh... section had been doing
so uh...
nobody ever said the section wasn't shrewd
well that wouldn't have violated the consent decree in and of itself so they
actually went beyond that and didn't staff the committee's
with non academics or at least sufficient numbers of them
right right yes I understand and you said that very clearly in the book
i was just pointing out a little filipto additional right yeah
of a point you make in the book the extent of the increase in tuitions
between nineteen eighty five and
let's say two thousand and ten I think the best way to do it is compare it to the
rate of inflation
so the average tuition at private law schools uh... in two thousand and
eleven
was just a shade under forty thousand
and had it gone up
uh... just at the rate of inflation it would be somewhere around sixteen
thousand
uh...
uh... and public school i believe is now up to about
eighteen or nineteen thousand
and had it gone up with the rate of inflation it would have been around four or
five thousand
so you can see just from those comparisons that um...
that we've gone up far in excess of the rate of inflation
uh and again i i i need to repeat that i'm just giving average numbers
there are private law schools uh yale's tuition is over fifty thousand
columbia's tuition is over fifty thousand
uh... and there and there are public law schools that have out-of-state tuition
that it's over fifty thousand that's michigan virginia california uh
berkeley u_c_l_a_ when we started a school and were charging eight schools
around here like harvard and BU
bc so forth were charging roughly around twelve thirteen fourteen
so now we're charging seventeen and they're charging forty and fifty
yeah wow all you can say is wow
and you say in the book
I've said here if i remember correctly uh... is u is very important and that is
the impact
and the
ways in which there is an impact
of the law school rankings put out by u_s_ news and world report
the ranking
uh... really controls has a really controlling influence on legal academia
uh... we have we have two controlling influences one is the accreditation
template as applied by academics
and the other is the u_s_ news formula and what law schools have done
essentially is is uh... tailor their policies
in relation their admissions policies their scholarship policies
uh... in relation to the metrics measured in in u_s_ news
uh... I detail several of the
of the quite negative consequences in the book
uh... of of what we've done but i want to specify one in particular
and that is the allocation of scholarships uh... in up up through the
mid nineties the
the majority of scholarship money went was distributed on a need basis and that
in other words it went to students
who came from
uh... lower economic circumstances
by the mid two thousands this had flipped
uh...
in proportion and the majority of scholarship money is now allocated based on
merit and what i mean by merit essentially is that
the bottom half
the students coming into the class with the
bottom half l s_a_t_ scores and g_p_a_'s
would pay full price
and the students coming in on the top half with the better g_p_a_ scores
and better LSAT and it was primarily LSAT
would get discounts some some would pay half tuition and some would pay no
tuition
uh...
now the there's a perverse consequence that applies to this that follows from
this and that is
that students in the bottom half although this doesn't hold entirely
often do more poorly and and if they do poorly in law school they don't get good
jobs coming out of law school
so the effect i call a reverse robin hood affect we essentially have a
redistribution scheme between the students
in which the students likely to be poorer coming out are actually subsidizing
the education of the students who are likely to earn more money coming out
uh... it's just one of uh... many strange things we've done
and this relates
this this relates directly to u_s_ news
i'm sorry this relates to what
our shift in scholarship policies is a direct
directly related to u_s_ news
uh... legal educators often complain about u_s_ news and blame u_s_ news for
all the
things we've been doing that are highly questionable including uh
putting up
employment numbers that are misleading
uh... including two schools that submitted false lsat g_p_a_
medians to the a_b_a_
so we often say it's you know it's u_s_ news that made us do it uh...
and i i think
while there's truth to that we also need to
keep in mind that law schools are making choices
and we've kind of lost our way in this competition for
ranking and prestige
we've
we lost our way about what our own priorities are the things that you have
mentioned extensively in the book and
briefly here
and they include
it would be nice to call them untruths
that have been put forward by law schools and uh... their representatives
yeah they strike me as a moral disaster
and i think that you used the word moral somewhere in the book but maybe i don't
remember correctly
can i would it be correct to interpret the comments you just made as de facto
saying
we have lost our way and then a moral disaster has been created
once all this became revealed
deans have lost their jobs uh... uh... admissions people have lost their jobs
and of course one of the reasons they did it
as you again point out is
god forbid that a school should fall one or two or three places in the u_s_ news
rankings from say twenty first to twenty fourth
I mean it just hits the fan the alumni go nuts the students go crazy
and uh... deans uh...
I won't say understandably 'cause i don't think there's any
uh... understanding it in the in in in the sense of the word understandably
and deans uh and and admissions people do these things because they
literally fear for their jobs
uh...
the a_b_a_ has
lobbied and then by the seventies had succeeded
in having most state supreme courts not all
but most
maybe forty five out of fifty
require graduation from an a_b_a_ school in order for a student
to to
take the bar in the state
uh... the schools which could have thumbed their nose at the a_b_a_ chicago harvard
yale stanford michigan etcetera
they didn't care enough to do anything about it
the state court saying that you had to be a graduate of an ABA-school
is what permitted
the imposition of these various rules now you say
well obviously then
the way to correct this is for the state supreme courts
to permit there to be other ways
by which a school's graduates
uh... could uh become eligible to take the bar
uh... perhaps uh... approval or accreditation by some organization
other then the a_b_a_
i mean our school's accredited by the new england association of schools and
colleges for these very reasons
and my question to you is is this realistic is this at all likely
to happen
i hope the state supreme court justices read my book
uh...
if they do uh... i think the chance of it happening
might be stronger
uh... frankly i don't think any of the proposals i suggest in the end are likely
to happen
i believe law schools uh...
like the status quo and will fight to retain it
i quoted a
a montana court opinion in which the dissenting judges
made some of the same objections i i make in the book... maybe it's
different to hear it from an academic from someone on the inside saying look
there's something to this
and we lost our way to answer your question directly i do not believe it's likely to
happen I think it is sad brian the uh montana
uh... opinion which you quoted which we here in andover greeted with great
enthusiasm when it came out
is what ten or fifteen years old now yes and it has not caused much to happen no
sad sad
well let me ask you if there's anything else that you would like to say
it's not just about accreditation uh bodies
that's driving this i think a very big
driver unfortunately is the federal loan system
and the reform i think uh... ultimately most important
in all of this
is to uh... impose restrictions on federal loans
let me just explain up until recently
the federal government guaranteed student loans with no limit and then
uh... a few years ago they began providing
student loans directly through the graduate plus program
as long as these loans are provided without any evaluation of the likelihood
of repayment any evaluation of the economic return
without any limits on the size of the loan that students can take out
law schools will continue to raise tuition as long as they have students
who are willing to come
the federal loan
program provides them with the ability to come
uh so in the book i propose different sorts of caps that and and uh... outcome
tests for loans
now the main opposition to these proposals will come from legal academics
who say
that's outrageous or the loans are important to provide access to the
legal profession
and my response to that
objection is that what limits access today isn't
the unavailability of federal loans what limits access today is the
extraordinarily high tuition that we charge
and if law schools are really committed about access we can provide need-based
financial aid
uh... so the so what's inhibiting access is us the fact that our tuition is
now up to fifty thousand dollars a year
uh... so i hope
the senators i hope someone reads this part of it
the op ed in the new york times that i published two weeks ago focused on the
federal loan program for that reason i wanted to communicate
to to senators that you need to take a look at the impact of
providing unlimited funds no questions asked
as long as that's the case tuition will continue to go up
the problem seems to me
to be that not all law schools
can afford
the high aid that
would solve the problem under your suggestion
that the law schools which can afford it
are quite often perhaps not always but quite often
uh... those schools which whose whose uh... uh student bodies are comprised
of the already affluent
and that schools which
make an effort to educate
people who have been shut out of uh... education generally and legal education
in particular
and who accordingly charge
very low tuitions
probably cannot afford
to stay in business
without
federal loans and if they can't stay or guarantees
and if they can't stay in business then the very schools that are making an
effort
to provide social and economic mobility will be the ones harmed by curtailment
of federal loans
well that's the objection and
you know what do you think about that
uh... you're right except insofar as that should be an important
consideration when the cap is set
so for example i propose two different cap kinds of caps
one is to cap how much money an individual student can borrow
from the federal government
the other is to cap how much money any particular law school can get from the
federal government in any given year
and and so so the cap can be set at a level that takes into consideration
precisely your concern
the figure i came up with and it could be any i was just using it as an example is to
say that um... that law students should not be allowed to borrow more than a
hundred twenty thousand dollars
which is a lot by the way
now the
that's what i was gonna say so so really all that's saying to law schools is set
your tuition at twenty thousand you'll be okay
in fact you can set it at twenty five thousand you'll still be okay
uh... so i wasn't saying cut it off of course we need access and students need
to borrow i borrowed money to go to law school my parents are school teachers
uh... the the problem is that because there's no cap
there are law schools with average indebtedness of a hundred fifty thousand
and these students are not going to pay pay pay they will not pay this money
back
uh... especially if you look at the uh... the schools and the placement
rate upon graduation which i have
uh so i'm really setting a cap as a way of protecting the students ultimately
from taking on debt that will be unaffordable to them
and imposing restrictions on the law schools in terms of how high they set
their tuition
uh... but i absolutely agree with you
that we need to whatever caps are put into place need to be done
with attention to maintaining access
to the audience thank you for being with us
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