March 23, 2011
Masters Forum: Legal Education: Disclosure Cops, Maginot Lines, and the Acid Test
Posted by Erik Gerding

My main problem with the panelists so far, is that they have created a tough act to follow. Count me as an accreditation skeptic. More particularly, count me as a skeptic of the accreditation process. Ideally, accreditation might serve the function of providing a peer review for the teaching quality of schools, in addition to setting minimum standards for legal education. Indeed, ABA site visit teams work hard at these goals. But does all the rowing always move the boat in the right direction?

Site visit reports often include some very general guidance and then a laundry list of particular items to remedy. I second Professor Hoffman’s skepticism that these items always bear a close relationship to the quality of legal education. There are several reasons for that. It is quite hard to evaluate educational quality. And the ABA must be wary of complaints (or even litigation) of arbitrary, uneven, or anticompetitive application of standards. So what to do? 

Focus on the most concrete metrics possible.

Accreditors as Disclosure Cops?

I was going to write a post about transforming the ABA accreditation process into an information auditing process (elaborating on a post I made several months ago), but Professor Hoffman beat me to the argument and did it more justice than I could have. Audited disclosure would combat the gamesmanship of data provided to US News and other ranking sits and puts the power in the hands of law students. Like securities law, focusing on policing disclosure instead of imposing substantive standards (merit review) offers a less invasive regulatory option.

But let me explain why turning the ABA into a disclosure cop ain’t gonna happen anytime soon. First, who wants to be an auditor? That sounds like accounting. Try convincing some volunteer practitioners and academics to sift through and dispute statistics with a law school administration. Second, law schools have considerable interest in maintaining the status quo. There is something for a law school to gain from having the ABA demand that the law school spend more money on XYZ, mainly greater leverage with main campus administration. The dirty little secret of accreditation is that is offers a great tool for law schools to bargain with university administrations for more resources.

Do We Even Need Accreditation? Accreditation as Backup to the Bar in Gate-keeping the Profession

The bar passage debate strikes me as peculiar. If we take Christine’s assumption that accreditation is for the benefit of students in gauging teaching, then we might conclude that we do not need accreditation at all if bar examinations actually did a reasonable job of measuring minimum competency to practice law. If bar exams performed this role, students would need much more basic information about law schools, namely how well did their graduates perform on the bar (perhaps compared with some metrics on school admissions requirements to let applicants see a baseline and assess the value added by an education). Perhaps we could then even do away with the requirement that students go to law school to take the bar.

But bar exams don’t even come close to this function. Why? For many of the same reasons accreditation focuses on easy-to-measure standards. The bottom line is that we could take a lot of pressure off accreditation if we improved the bar examination process. There is a curious relationship between the bar exam and law school accreditation that intimates that accreditation (contrary to Christine’s assumption that it is about students) may be designed to have a more of sub rosa gate-keeping function for entry into the legal profession. Wouldn’t a bar exam that actually measures the ability to practice law offer a more direct means to address the concern behind the ABA proposal that “law schools articulate student learning goals and periodically measure their student’s achievement of the goals”?

Measuring Outcomes

What about that ABA proposal that law schools state and measure learning outcomes? Theoretically, it smells like apple pie. What curmudgeon would oppose that teachers should articulate what they expect students to get out of a course and then try to measure whether they in fact did?

I guess I am becoming curmudgeonly. This proposal looks good on paper, but in my mind’s eye I can just see the ABA site visitors and law faculties getting bogged down in mind-numbing discussions about process and pedagogy.

The Logic of Management

The measuring outcomes proposal, together with several other elements of the ABA reform agenda – more disclosure of accreditation findings and most notably the tenure relaxation proposals – seem marinated in logic of corporate management. That is, much of the ABA package seems lifted out of a management consultant playbook to make law schools more efficient and outcome oriented.

I’m all for disclosing accreditation findings, but we can all anticipate some of the effects of this policy. Law schools will try to more carefully manage both the information given to and emanating from site teams. More time will be spent on spinning and less on a substantive exchange of information.

The Maginot Line of Tenure

I greatly appreciated Deborah’s post on tenure and agree with the vote of the Georgetown faculty against the ABA proposals watering down requirements that schools provide long term contracts to full time non-tenure track faculty. But this fight will be forever uphill and it may ignore some of the subtler threats to academic freedom.

The fight will be uphill because law schools face two enormous pressures to hire more adjuncts and other non-tenure track faculty. The first pressure is economic. As I wrote a while ago, budget crises will force law faculties to become much more like other academic units on campus and hire more temporary faculty.

The second pressure is curricular. The push to have more practical courses – a la the Carnegie and ABA reports – will demand teaching skills that many current law faculty, years removed from practice, no longer have. Law schools can recruit different kinds of faculty members, but, without more than a finger in practice, it becomes increasingly difficult to wade through pleadings, interrogatories, or merger agreements. I’ve already mused that we might consider sending faculty on practical sabbaticals, but reactions from professors have been more bemused than convinced.

Moreover, the fight over protecting tenure may be manning a Maginot Line. The subtler challenge to tenure will come through funding. Budget pressures will push law school administrations to ask law faculty to fund more of their research and perhaps even their salaries through grants. Again, expect law faculties to resemble other units on campus, such as the natural sciences, where professors largely eat the grants they kill.

All this is great if you think the marketplace for grants will efficiently allocate funds to the marketplace for ideas. But I’m deeply pessimistic. First, this push will come at the same time NSF funding is drying up. Second, not every field within legal scholarship is equally marketable to grant officers. A line of research’s long term value may not be reflected in the priorities of grant-giving agencies of foundations. Of course, industry may offer another source of funds, but will not dole out money for research that does not support its interests. Moreover, relying on either government or industry grants for research will lessen the vital role that the legal academy has in serving as a critical counterweight in society.

More generally, I predict that the erosion of tenure and salary security will fuel drives to unionize in the legal academy.

The LSATs Ain’t Going Anywhere

Lastly, I enjoyed Sarah’s post on the ABA proposal to make the LSAT optional. Let me add another reason that the LSAT is here to stay. Legal employers will still demand it. For all our concern about improving legal education, let’s remember that students also chose a law school as much for its signaling value to employers. Yale could teach its law students dog-walking and employers would still line up to interview students because they know the Yale admissions office has already done much of the sorting work for them. Without the LSAT, many law schools could not send a signal to employers of the “quality” of the class. Employers would either stay away from those schools or ask students for their LSAT scores to help them with the first rough sort.

Does the LSAT adequately measure all of the skills necessary for success in law school or in the profession? No. Some professors, like Marjorie Shultz of Berkeley, have been working on alternative metrics. The acid test of any alternative will be, not whether it is accepted by law schools and legal academics, but whether it is accepted by employers.

The Acid Test

That points to a larger lesson for law schools and accreditors. If we can’t ensure that legal education helps students succeed in the legal employment market both in the short and long term – a market that looks to remain brutal – this accreditation debate will remain just sound and lead only to fury.  Our enterprise, and all its goals, noble and mundane, is in jeopardy if students can't gain a secure foothold in the practice.

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