March 23, 2011
Masters Forum (Legal Education): "Learning Outcomes" for Law School
Posted by Christine Hurt

I've enjoyed reading all the posts in our Masters Forum on the ABA accreditation standards.  One of the areas for revision has only been touched on, so I thought I would wrap up my contribution with some thoughts on learning outcomes. 

a.  Requirements that law schools articulate student learning goals and periodically measure their students' achievement of the goals;

I have to admit that this one gives me some pause.  Not because I'm paralyzed with fear that this "periodic measurement" will highlight flaws in legal education generally or in my school's curriculum in particular.  Learning outcomes assessment has been a very important movement at universities for awhile, with units articulating learning outcomes and plans for assessing them.  Institutional Assessment is a very big deal.  I am certain that many law schools have had to go through this process at the request of main campus.  I'm not sure if we can assess or measure, however, whether the (time-consuming and expensive) process of articulating these goals and measuring them has actually improved higher education.  (Though I'm sure there are folks working on how to measure that!)  The fruitful process of articulating these goals seems vaguely like a more elaborate exercise than crafting a mission statement, another worthy pursuit with somewhat limited value.  I'm not a psychic, but my prediction would be that we would see law schools articulate learning goals that are broad, general, watered-down and either very easy or very hard to measure.

At some point in my adult life, I was in a discussion with higher education administrators and professors discussing a recent mandate that academic divisions articulate learning goals and then go about designing a way to assess whether these goals were met.  Although I still partly believe that I was unwittingly in a Monty Python skit, one administrator gave this as an example of an acceptable assessment exercise:  "For example, a liberal arts and sciences department might state one of its learning goals as 'creating life-long learners.'  Then, assessment might take the form of exit interviews with graduating students whereby the student answers questions about whether he/she will be a life-long learner."  This example has stuck in my mind for obvious reasons.

So, here are some examples I found on the Interwebs of learning outcomes at research universities (I am presenting them without attribution, but they seem representative):

(Biology): To develop in students an appreciation of the levels of organization of life, its diversity, and the processes by which life has achieved its present form.

(English):  Acquire lifetime learning skills and knowledge dispositions so to continue critical reading and writing.  (This goal was assessed through alumni surveys, not exit interviews.)

(History): History majors will demonstrate skill in chronological thinking.

(Business):  Think logically and analytically about complex problems.

Now, I'm not being entirely fair because none of these learning goals were the sole goal, but one out of four or five for that major.  However, most of these learning goals are stated at a very general level, with words like "appreciation" and "fundamental" and "aware" being used often.  So, I'm thinking that a law school learning outcome could be articulated as:

• familiarity with the development of the common law in the United States in the areas of contracts, torts, property and criminal law and mastery of the basic rules and their application to facts in each area;

• development of critical thinking skills

• development of problem-solving skills

• development of oral and written communication skills

• development of skills to work effectively in a group; and

• development of an awareness and understanding of current topics in the law.

OK, I cheated.  I took most of those from the learning outcomes of a liberal arts college.  But then, I searched for law school learning outcomes and found BYU's, which are quite comparable (I left out ethics, which says more about me than anything).  So, how would we measure these goals?  Some departments have final exams randomly re-assessed by assessment professionals to see if upper-level students' work reflects achievement of the learning outcomes.  We just had our ABA site visit, and I don't think anyone pulled student exams!  Some schools seem to say that by requiring certain courses to be taken, these goals are met.  On the other hand, as a law school, we should hope that the Bar Exam measured these outcomes (ok, not the "works in a group" one), but as Erik has pointed out, that may not be the case.

So, my bottom line is that I don't think the ABA should waste it's time on this one.  Many universities already require units to do this, so why don't we leave it to the universities.  In addition, I'm not completely convinced of the value of the exercise.

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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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March 22, 2011
Masters Forum: Legal Education - Is It Our Job to Discourage the Would-Be Law Student?
Posted by Usha Rodrigues

 Dave Hoffman's anecdote about attending an ABA workshop for accreditors is priceless:

the highlight was the Representative's joyful boast that several new schools had been guided toward a successful accreditation, and there were an additional handful of prospective schools in the pipeline.  He neglected to mention that we were then in the middle of the worst job market for new lawyers in several generations. As I recall, his announcement was met with applause.  I felt like a guy on the Titanic, watching the band play on.

Everyone knows that we law schools are collectively producing too many lawyers.  But no single law school school is incentivized to curtail its own output (let alone shut down).  What's the answer?  But Bill Henderson and Andrew Moriss recently issued a call to arms:

We would like to suggest to our colleagues in the legal academy that we are approaching an endgame.  Here is the reality:  prospective students are not being given an accurate picture of their future employment prospects.  Why? Because we are all focused on filling next year's class with as many high credential students as possible, thereby protecting our school's place in the pecking order.  Our focus is so shockingly narrow that, from the outside looking in, it appears that our intent is to deceive incoming students.  Brian Kelly's letter to the deans essentially makes that point--law schools fall short on candor and ethical behavior.


Now is one of the very few moments in our careers as academics where we have to make hard choices and demonstrate that we warrant the trust and respect of our tenured positions.   Through our governance organizations (ABA, LSAC, NALP, AALS), we need to implement a system of complete transparency on employment outcomes.  If the system has real teeth, it will force us all to work very hard to ensure we are delivering value commensurate with the tuition dollars we collect.

It's the end of the road.  We likely have one last chance to get it right.

I'm all for more disclosure, educating prospective students on the risks that a legal education entails.  As I've said before, I think state law schools will be the big winners in a world of more discerning law school consumers.  But if we had to point to one single reason for the drop in law school applications, it might well be this:





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Justifying tenure requirements-an analogy
Posted by Deborah DeMott

Justifications (and critiques) of faculty tenure often proceed from the perspective of an individual faculty member but fail to emphasize the institutional and public values furthered through the insulation that tenure provides. Although I'm a long-time (and long-tenured) member of a law school faculty, I've always thought that debates over the merits of tenure that focus on an individual's interests miss the point. Surely faculty expressive freedom, and the new ideas and debates it generates and provokes, has public value and is integral to a university's purposes.

More recently, I've come--via an analogy--to think of tenure as a constraint on decisions that may be made, whether by university administrators or by self-governing groups of faculty. Such decisions might, for example, effect a shift in research methodology, pedagogy, or otherwise, by non-renewing the contracts of non-compliant faculty. I'm assuming decisions made in good faith and rationally in light of what the present seems to demand. Tenure, of course, operates as a powerful constraint against implementation through a number of substantive and procedural requirements I won't detail here.

The analogy that comes to mind is an art museum. Even in the absence of legally binding terms (such as the restrictions in a gift), art museums operate subject to a significant constrainst against deaccessioning--whether by sale or otherwise--objects accessioned into the museum's collection, unless the proceeds are used to acquire other art objects or serve the needs of the museum's remaining collection. Consider the firestorm of protests a couple of years ago when the trustees of Brandeis University decided to deaccession the collection of the university's Rose art museum and use the proceeds for general university purposes. The trustees backtracked considerably.

In the museum context, firewalling off the art from the demands of the museum's operating budget helps assure that the museum's purposes are foremost. These are collecting and displaying art, not operating as an art dealer. Additionally, tastes change. Art that's presently disfavored and thus deaccessioned is gone. And if the proceeds from deaccessioning are used for operating purposes, the long-term interests of the museum's collection have been sacrificed to the short-term immediacies of operational needs. The constraint applicable to museums reinforces fidelity to the museum's purposes and helps guard against a form of hubris that over-weighs perceived present interests against the longer term. It does so in an organizational context--not-for-profit entities--that's notorious for weak after-the fact sanctions by imposing a strong ex-ante constraint on the scope of acceptable decisions.

I suggest faculty tenure operates likewise. It helps guard against hubris, including our own were we collectively empowered to do what we think should be done regarding certain colleagues! It also reinforces the point that a university is a non-profit enterprise devoted to teaching, research, and service to the public. Why? These activities constitute the faculty's work. Additionally, well-run museums aware of the constraint against deaccessioning exercise care and caution in adding to their collections, just as universities should exercise caution in awarding tenure.

To be sure, the analogy is not perfect. People are not art objects (!) and the interests served by tenure would not be met were all savings from "deaccessioning" faculty used to "acquire" other faculty. But just as a museum's collection is integral to, indeed constitutive of, the museum, so is a university's faculty.

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Masters Forum: Optional Standardized Testing: The LSAT and the SAT
Posted by Sarah Lawsky

I want to address the proposal to remove the LSAT requirement for accreditation. Before I do, though, let me first adopt Christine's assumptions: "(1) that law schools should be accredited by some external body; (2) that this external body is going to be the ABA; (3) that no school outside of California can practically afford not to be accredited; and that (4) that the purpose for the ABA providing accreditation is for the protection and benefit of law students." There are very interesting conversations to be had about each of the assumptions, particularly the first two, but for the purposes of this post I accept them and proceed.

The ABA has proposed removing the current requirement that, to be accredited, "a law school shall require each applicant for admission as a first year J.D. student to take a valid and reliable admission test." This "valid and reliable" test is the LSAT. Note that the ABA has not proposed "kill[ing]" the LSAT; rather, it would leave the decision of whether to require the LSAT up to each individual law school.

To get a sense if what might happen if the LSAT becomes optional, I took a look at four-year colleges, which are not required to get standardized test scores from their applicants. Obviously there are many important differences between law school admissions and undergrad admissions, but this analysis still can, I believe, provide some insight.

First, the vast majority of undergraduate institutions still require applicants to take the SAT or ACT. There are about 2700 four-year colleges in the United States. Of those, according to one group, about 800, or 30%, do not require the SAT or the ACT (when I refer to the SAT throughout the rest of this post, I mean to include the ACT). Similarly, I suspect that most law schools would continue to require the LSAT. The LSAT is, after all, the single best predictor of first-year law school grades, and LSAT together with undergraduate GPA is an even better predictor. (The LSAT does not, in other words, measure only one's ability to prepare for the LSAT.) Moreover, because many law schools report only percentile data, any law school can choose to admit some people with very low LSAT scores without harming its ranking.

About half the schools that do not require the SAT (the "non-SAT schools") appear to have made that decision for reasons that do not obviously translate to the law school context.

SAT Doesn't Measure (22%): For some of the non-SAT schools, the SAT is not a terribly useful test, because the school is looking primarily for something that is not measured by the SAT. Specifically, about 7% of the non-SAT schools are art or music schools or conservatories, and another 10 to 15% are seminaries or religious schools, such as rabbinical training programs.

School for Everyone (24%): A little more than 20% of the non-SAT schools require the SAT only if a minimum GPA or class rank is not met, or only for out of state students. These are primarily state schools, such Cal State University campuses and many of the Ohio State campuses, whose mission is to provide access to higher education for a particular slice of state residents (in the case of Cal State, for example, the top 1/3 of California high school students). There is no such equivalent for law schools.

Other Standardized Tests (2%): Some of the most prestigious four-year institutions that do not require the SAT permit students to apply without the SAT only if they submit the scores of other tests, such as AP exams, IB exams, or SAT subject-area exams. Applicants to NYU, for example, may submit either the SAT, or the scores of three AP exams, or the scores of three SAT subject area exams. I am not aware of similar equivalent tests for law schools.

The remaining categories of non-SAT schools do suggest some interesting things for law schools.  

The Alternative Law School: Beware the Proxy

There are a handful of very prestigious colleges that require no standardized testing; some, though not all, of those seem to be intentionally alternative schools, such as Hampshire and Bennington. (The drop-out rate at Hampshire seems to be about 33%, and at Bennington, about 40%.) Analogously, a few law schools might choose to position themselves in the law school market as true alternatives.

Because the LSAT is the best predictor available for first-year grades, though, an excellent law school that wanted to position itself as a true alternative school would need to do extra work when admitting students without an LSAT score to make sure that the students would be qualified to do the work and have a chance of excelling at law school and beyond (by, for example, passing the bar and obtaining good jobs).

I would worry that admissions at such a school would favor undergrads from small private colleges who were, for example, able to work closely with faculty members and thus to get glowing, personalized recommendations, or to earn admission to other prestigious programs that could serve as proxies for law schools' deciding whether to admit them. In other words, personal connection and privilege might become more important, not less, at such a school. (As David Zaring puts it, the LSAT might be more meritocratic than the alternatives.)

For-Profit Institutions: Show Me the (Law Students') Money

Perhaps most worrying, about 11% of the schools that do not require the SAT or, indeed, any standardized test, are for-profit schools. The concern here is well put by Vivia Chen
My hunch is that the law schools that won't require LSATs will be either newly opened law schools looking for bodies or those rated at the bottom....I fear that schools that don't require the extra hurdle of the LSAT will attract even more applicants (probably some very weak ones, who shouldn't be in law school in the first place)--and that the cycle of bad schools and jobless graduates will escalate....
The example of the SAT appears to bear out this concern. Maybe everyone should be able to go to college (or maybe not). But should everyone be able to go to law school? There are many law schools now--so many that even someone with a relatively low LSAT score could find somewhere to attend. If someone is unable to score higher than, say, 130 on the LSAT, perhaps that person truly should not attend law school, especially given that the legal employment bubble has burst. On the other hand, maybe that decision should be left to the individual, not to the ABA.   

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Masters Forum (Legal Education): Accreditation After the Bubble Has Burst
Posted by Dave Hoffman

Bursting-bubble Let's assume that the applicant data noted by Erik, the WSJ, and countless gleeful business school admissions officers, are a real turning point. The bubble has burst.  What follows for how the ABA should conduct the accreditation process?

I'll start with a Lewisian anecdote.  I've the honor of chairing Temple's self-study committee this year, as we prepare for our sabbatical site visit next fall.  As a part of the "accreditation process," I attended an ABA workshop in the summer of 2010 for site accreditors and law school representatives.  The room, at an airport hotel in Chicago, was full - Gordon Smith was in the house! -  and the plenary session sometimes informative.  I'd also estimate that it cost the attendees an aggregate of $250,000 to attend, taken from student tuition dollars, when fully all of the benefit could have been achieved with podcasts, online presentations, and e-materials.

As the conference began, the ABA's Representative gave a speech lauding the standards, which he argued could be employed to good ends.  He comforted us by noting that no one, ever, emerges from accreditation without a demerit requiring correction.  That is, the accreditation process is set up so that a law school must engage with the ABA's corrective hand. But the highlight was the Representative's joyful boast that several new schools had been guided toward a successful accreditation, and there were an additional handful of prospective schools in the pipeline.  He neglected to mention that we were then in the middle of the worst job market for new lawyers in several generations. As I recall, his announcement was met with applause.  I felt like a guy on the Titanic, watching the band play on.

Indeed, there was something profoundly odd about the whole shebang.  (And I say that hopefully without any prejudice to Temple's re-accreditation, which I expect will go as smoothly as one could expect.)The ABA folks have convinced themselves that the Standards are welfare maximizing, and that the ABA must keep law schools honest by dictating small details of their operations (45,000 class minutes, antiquated and paternalistic attendance policies, written strategic plans and self studies, study spaces, ugly tables on websites, matches between catalogues and offered courses, etc.)  At the same time, the ABA doesn't want to engage in substantive regulation - suggesting that there are perhaps too many mediocre law schools in particular regions, asking whether it is smart to pay $50,000 to go to a new law school in California. Cynics would attribute the former characteristic to bureaucratic mission creep, the latter to antitrust concerns.

So the result is this: the ABA accreditation standards meddle into law schools operations and resist innovation in pedagogy. They therefore significantly raise the cost of educating students at existing law schools.  But the standards don't ultimately serve as an effective check on entry, meaning that students (who pay more than they should for education) are competing in a world of lower demand for their services but higher supply of graduates.  This is the worst of all possible worlds.  The legal education market would be much better off if the ABA were replaced by an accreditation agency that didn't have the same guild-driven stake in the status quo.

But we're not in that world, nor will be soon.  So what should the ABA do?  Rather than nipping schools for failing to achieve some sets of metrics, or not utilizing a particular internal operating procedure, or having classrooms with noisy air conditioners, the ABA should act more like the SEC, and require (merely) disclosure of facts deemed material to "market" actors -- alumni, prospective faculty, prospective students.  Auditing would also seem appropriate - coupled with punishment for severe violations. The ABA has a really powerful weapon at its disposal that other accrediting agencies do not - the power of licencing.  It ought to use it to clean up the data, right quick.

What information should be disclosed?  It's not obvious that the current focus on employment and salary statistics is the right approach.  That's not to say that law school should hide employment statistics - or obscure them - but rather that having the Bar mandate a particular form of disclosure is a bad idea in a world where Bar-driven employment outcomes are the most variable and therefore most important part of the USNews rankings, which desperately needs a constantly changing set of measures to stave off the wolves at the door. (Having done some research into the determinants of rankings, let me just say this to Bob Morse: your plea for data transparency was funny and profoundly ironic.)  I also worry that disclosure of salary data will have anticompetitive effects in the smaller firm part of the labor market.  I could be convinced otherwise, but it strikes me that a better set of accreditation-driven disclosures would include the following:

  1. Actual law school cost: what was the retail price paid by every member of the class (anonymous, of course, and probably displayed in a histogram with 50 or so bins).  How did the school account for scholarships (was it a real dollar cost out of endowment, or a setoff).  What percentage of students ended up paying more than their originally bargained retail price?  What was the distribution of incidental costs?
  2. Actual law school debt: how many students took on debt, how much debt, and under what terms;
  3. Bar Passage: for every member of the class, the passage statistics, no matter how many times the test was taken;
  4. Retrospective Survey: some kind of nationally-designed survey, patterned after LSSSE, that evaluates whether graduates were happy with their education and the opportunities it brought them. Time series data would be really helpful in informing applicants.  A key reporting question: "did you get your money's worth"?;
  5. Law School Budgeting:  This is a complicated topic, but the basic idea would be to provide each student a school specific version of the taxpayer receipt.  How is money spent?  This would give applicants, students, faculty, staff and alumni a good sense of the school's priorities.  At the same time, the budget could disclose the law school's relationship to the central university.

I'd largely dump the substantive & strategic Standards and focus energy on enforcing these disclosure principles.  I'd cancel site visits.  Generally, I think prospective students and consumers would be better off if schools, and States Bars, picked their own paths. But the big purpose to these reforms would be to permit innovation & to reduce costs, which I think crucial to the future of domestic legal education.

Who would be made worse off were we to substitute disclosure for regulation?  Current faculty members, prospective faculty members, and (I think) practicing lawyers, all of whom would expect to see lower rents.  Also, perhaps, we'd reduce the likelihood of law professors and administrators taking politically unpopular positions, and representing politically unpopular clients.  This strikes me as a cost that is worth bearing, though many of my friends and colleagues, who are both wise and reasonable, disagree.

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Masters: Legal Education - In Praise of Regulation?
Posted by David Zaring

I find it odd that the ABA plays such a critical role in regulating law schools, but let's face it, without bar passage requirements mostly premised on law school attendance, legal academia would be a very different, and less cozy place.

I'm usually for less cozy and more competitive.  But that would suggest that I'd be against rules in the following three areas of accreditation:

c.  Relaxing the current standard that requires that schools must require every applicant to have a score on a valid and reliable entrance examination (practically speaking, the LSAT);

e.  Reconsidering current standards that require schools to have class attendance policies, limit students from taking a internship at which they would be paid, and substantially limit credit hours that can be earned by students through distance education courses;

f.  Reconsidering the (relatively new) policy concerning minimum or threshold bar passage rates and addressing the perception that the thresholds established by the policy are too low.

But I'm not.  I'm for ABA regulation in each of these places.  I think the LSAT preserves the ideal of meritocratic entrance.  It is good that if schools want to diversify their classes on whatever metric, admit rich legacies, or simply create an exclusive, Ivy League, or Old-Siwash-7-Year-Man patina, they have to deal with the fact that applicants who don't offer those features take the same test.  Without the LSAT, some schools might look for those legal versions of the PSDs.  But you worry that other, highly ranked schools would not.

I also think that class attendance isn't a terrible thing to require, that sneaking a bunch of credit hours into distance education would hurt the ability of students to get to know each other, and that perhaps there ought to be some threshold bar passage rates as a matter of consumer protection (the applicants being the consumers).

The one anti-regulatory view I have is that it might be the case that law schools should feel free to really mess around with that third year.  And if that means internships (even paid ones), clinics, and a return to an apprentice style education, than so be it.

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Masters Forum (Legal Education): Should the ABA Mandate Tenure?
Posted by Christine Hurt

If we are to engage with the ABA's areas targeted for accreditation reform, then we have to take a few things as given:  (1) that law schools should be accredited by some external body; (2) that this external body is going to be the ABA; (3) that no school outside of California can practically afford not to be accredited; and that (4) that the purpose for the ABA providing accreditation is for the protection and benefit of law students.

If (1)-(4) are true, (particularly (4)), then I'm not sure why the ABA even speaks to tenure at all.  We have already assumed that the ABA provides accreditation for the benefit of law students, not law faculties. The ABA is not a collective bargaining unit or a union.  The ABA is not the AAUP or even the AALS.   The ABA is not a labor organization.  Therefore, I'm not sure why benefits of law faculty employment are under the auspices of the ABA at all.  So, though I like my tenure, I'm not sure that I can rally any arguments as to why my tenure should be an ABA requirement.

Now, from my time spent teaching legal writing, I'm aware of pro-student arguments for tenure.  Dedicated, full-time, professional teachers are better teachers and enhance the student experience.  A rotating stable of short-term teachers, new teachers, adjuncts, or part-time teachers will not produce overall quality experiences for students.  As Director of Legal Writing at one law school, I kept track of the student evaluations of our thirty-plus adjuncts and a handful of full-time teachers.  Yes, number of years teaching was a main predictor of student evaluations, as was full-time status and on-campus status.  (None of the teachers were tenured.)  But, this data alone does not convince me that the ABA needs to mandate tenure-for-most or tenure-for-all to achieve quality teaching.  First, if the ABA wants to ensure quality teaching by having stability in faculty ranks, then it could create guidelines for attrition or long-term contracts.  Second, I would look to clinical programs and legal writing programs to see if untenured actually equals more turnover.  It could, but it might not and I would want to know that.  Third, if the ABA is genuinely concerned with quality teaching, then tenure seems a little counter-productive as it creates no incentive to maintain the quality of teaching.  Yes, we can all assume that having a faculty entirely of adjuncts would not yield extraordinary teaching, but the theory that having a faculty entirely of those who cannot be fired seems to strain logic as well.  If we were taking these theories out for a roadtest in front of focus groups, neither would pass the straight-face test, I fear.

Of course, none of this is to say that I don't think there are some good reasons for law schools to adopt tenure policies -- for recruitment, in lieu of high salaries, etc.  Or, that I could not be convinced that tenure plus some other sorts of provisions will yield the best teaching environment.  I'm not going to go out and burn my tenure undergarment or anything -- I love my tenure.  But I would leave this decision to the law schools themselves.  Perhaps this would give some law schools the freedom to distinguish themselves in other ways and create different types of learning experiences for students -- more practicum, more service-learning, etc.  The ABA doesn't tell law firms that they must have equity partnership routes for associates in order to protect and serve clients, and I don't see a more cogent connection between tenure and student learning in the educational environment, either.

In a nutshell, in order to be up in arms about the possibility that the ABA will remove the tenure requirement from its accreditation standards, I would need to be convinced to some degree of at least two things:  (1) that tenure standards are for the benefit of students, not faculty and (2) that there is some empirical basis on which to assume that tenure systems (as opposed to other types of employment contracts) ensure quality teaching.


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March 21, 2011
Masters Forum: Legal Education
Posted by Usha Rodrigues

Welcome to our Masters Forum on Legal Education. While the Masters will focus on the ABA's proposed changes to accreditation standards (reproduced below), I suspect, as Erik does, that they may also address the reported decline in law school applications and talk of the law school bubble's bursting

Proposed changes

a.  Requirements that law schools articulate student learning goals and periodically measure their students' achievement of the goals;

b.  A new rule that would provide for the public disclosure of accreditation findings for individual law schools;

c.  Relaxing the current standard that requires that schools must require every applicant to have a score on a valid and reliable entrance examination (practically speaking, the LSAT);

d.  Removing the current requirements that prescribe particular types of contracts (in terms of duration, participation rights, etc.) that must be given to faculty members who don't have tenure, while strengthening law schools' obligations to protect the academic freedom of all full time faculty members.  A related edit would relax the current requirement that the university or governing body must provide the dean with tenure as a member of his or her faculty;

e.  Reconsidering current standards that require schools to have class attendance policies, limit students from taking a internship at which they would be paid, and substantially limit credit hours that can be earned by students through distance education courses;

f.  Reconsidering the (relatively new) policy concerning minimum or threshold bar passage rates and addressing the perception that the thresholds established by the policy are too low.

Let the Forum begin!

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