Innovation in Law School Education
A number of law faculties have sent out resolutions that attack the proposed new ABA Accreditation standards. The basic claim is was articulated by the AALS: the proposed standards would decouple accreditation and tenure, thereby making it possible to run an accredited law school without a tenured faculty. (Tamanaha memorably fisked the AALS here.) Last week, Temple’s faculty joined the chorus against the changes in the rules. In light of my priors on this issue, I voted against the majority’s resolution, and I am happy to report that eleven of my colleagues joined me in supporting the ABA’s proposed new standards. [Yes, friends, I'm proud of losing 2 to 1. I thought the vote would be different.] For me (and I guess for the other dissenters), it would be better to live in a world where schools could offer different kinds of legal education – presumably at different prices – so long as they produced students qualified to be lawyers. The majority may have been motivated, by contrast, by a fear of a “race to the bottom.” Once a single law school offers cheap legal education without tenure (and without incumbent-protecting rules such as those that prohibit law students’ outside employment), we’ll all circle the drain and become diploma mills. I think that argument depends on an odd view of applicant behavior. Prospective applicants assess multiple variables when deciding which law schools to attend. If they picked price alone, the admissions market would look quite different. (Just as an example, more students would pick Temple over Penn. Now, I happen to think that for many students, that choice would be value maximizing. But it’s not the path that many applicants take.)
It’s easy enough to believe that this is precisely the kind of symbolic display that isn’t worth engaging in, let alone repeating on a blog. I am strongly tempted by that view. After all: what difference does it make if one faculty (or ten, or one hundred) votes against the ABA’s standards? The relevant decision makers aren’t the subject of regulation (law schools) but rather members of the ABA’s general assembly. Why not similarly announce the faculty’s opposition to global warming? Or dislike of the generic Republican ballot entrant? Or move in favor of kittens and sunbeams? Or, heck, against grading exams?
That all said, if you are on a faculty that is considering one of these resolutions, or if you are a student at a school that hasn’t yet passed one, I urge you to argue for the ABA’s proposed rules. The package of changes proposed would move the ABA moderately away from its current regulatory mode – which tends to tell a law school how it must organize its program of education, physical plant, and employment relations. The changes would instead (mildly) emphasize outcomes and (mildly) back away from mandated employment rules. This is a better way for an accreditor to act, and, not incidentally, it would bring the ABA more in line with the way that every other regulator of American higher education behaves. I think that on balance the proposed changes would reduce the cost of legal education and thus make it more likely that graduating students can choose their own paths, rather than the one dictated by their debt service obligations. The proposals on net promote innovation, and reduce the monocultural model of American law schools.
In the end, faculties, who benefit from the current system at the expense of their students, and therefore at the expense of consumers of legal services, shouldn’t be given a free pass to lobby for their own job protections.