Advice to the ABA

May 13th, 2013 / By

Like many other lawyers and educators, I have submitted comments to the ABA’s Task Force on the Future of Legal Education. As I note in my letter, the challenges facing legal education will require responses from many quarters. I tried to focus my comments on issues where the ABA could play an effective role. My six recommendations are:

1. Limit the availability of federal loans by (a) advocating for Congress or the Department of Education to modify loan rules, and (b) adopting accreditation standards that would tie accreditation to graduates’ ability to repay loans.

2. Adopt an accreditation standard that would require law schools to divide scholarship dollars equally between need-based and merit-based awards.

3. Encourage “flex-time” degree programs that would allow students to integrate work and academic study in a greater variety of ways.

4. Allow law schools to apply some pre-matriculation credits toward the JD. This would change current Interpretation 304-5 in the accreditation standards.

5. Adopt proposed Alternative C to Accreditation Standard 405, which would allow schools to protect academic freedom through mechanisms other than tenure, and would require schools to afford the same job security and status to all full-time professors.

6. Repeal Rule 5.4 of the Model Rules of Professional Conduct, which prohibits lawyers from forming partnerships with non-lawyers or obtaining outside investment in their practices.

I’ll offer more detail on each of these proposals in separate posts. Meanwhile, if you’re interested in my letter to the Task Force, it appears here.

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Letter to the ABA

March 10th, 2013 / By

A “Coalition of Concerned Colleagues,” which includes me, has submitted a letter to the ABA Task Force on the Future of Legal Education. Although I can claim no credit for drafting the letter, I think it offers a succinct statement of the economic distress faced by law students and recent graduates: tuition has climbed dramatically, scholarships rarely address need, entry-level jobs have contracted, and salaries in those jobs have declined. The combination is oppressive for students and unsustainable for schools.

The brief letter notes a number of changes that might ameliorate this burden. All of those deserve exploration; I have posted on several already and will explore others in upcoming weeks. The letter, however, leaves a key point unstated: tenured professors at most schools will have to change their expectations if we hope to address this crisis. Faculty salaries and other perks account for a substantial share of the budget at most law schools. We can try to cut corners in other ways, by trimming staff and begging central administration to leave us a higher share of each tuition dollar. But in the end, we have to ask ourselves hard questions about the professional lives we’ve designed and the pay we demand.

Law professors earn high salaries, considerably higher than the pay drawn by most of our colleagues across the academy. Much of that money comes from the tuition paid by our students. With job and salary prospects down for lawyers, and with more transparency about those outcomes, fewer students are willing to pay our tuition. Faculty are going to have to adjust their financial expectations–and I think we should. We have enjoyed artificially high tuition and salaries for many years, due largely to our powerful economic status as gatekeepers to the legal profession. States didn’t create those restraints to enrich law schools, and we have served few interests (other than our own) by aggressively raising tuition and salaries over the last three decades.

In addition to lowering our financial expectations, faculty most likely will have to adjust the courses they teach, the ways in which they teach, and other professional activities. Distance education, for example, can help reduce the cost of legal education–but only if faculty are willing to use those techniques and then to consolidate courses across schools. One faculty member can teach Antitrust or Remedies to students at several law schools, but the faculty at those other schools must be willing to shift to other courses.

Adding apprenticeships and externships, similarly, will affect what current faculty do. We can’t expect students to pay for the full range of courses and scholarship our faculties now support plus the cost of apprenticeships or externships. These hands-on experiences will have to replace some of our current offerings, with traditional doctrinal faculty downsizing or taking on new duties.

Changes of this type are implicit in the letter from Concerned Colleagues, although I haven’t discussed these specifics with other signatories. Schools may find alternatives to the particular changes I’ve mentioned here; we need creativity to address the challenges before us. But it’s essential to avoid magic thinking when confronting those problems. The key difficulty for our graduates, students, and prospective students is that legal education has become too expensive for the career paths it supports. There is no magic solution to that problem in which we all become richer.

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