Pleased to be working with a group of legal educators, judges, lawyers, and higher ed folks on future directions in legal education. This matters to would-be lawyers, and also matters to law schools. This is obviously true, but in some important ways is neglected in ongoing debates about what to do about accreditation and, as a subset of these questions, whether the ABA Section on Legal Education should continue as the primary accreditor. Other committees are hard at work on these questions; and there is presumably conversation within the current administration and among state courts about the “what is to be done” question.
As we begin our work (and on a very ambitious timetable), how we best frame the issues is critical. Is this about improving the teaching and training of future lawyers? What is the fundamental role of accreditation in a system of legal education that is largely self-constructed and self-evaluated? What are the objectives of law school and law student regulation? How do accrediting bureaus evaluate their functions and their performance?
Likewise critical is how we go about gathering and analyzing information. We should center this project around data and undertake our efforts around inquiry that is evidence-based and looks at improving outcomes, rather than entrenching existing institutions and traditional modes of thinking. Moreover, we should be broadly inclusive in collecting perspectives and information. While there is lots of expertise within this group, we should be a listening committee. It is important to collect and evaluate the perspectives of myriad stakeholders, many of whom are represented more or less in this collective and others (think of students and also consumers of legal services).
No official organization has assigned any authority to this task force. Our influence goes only so far as our constructive suggestions warrant. For this Substack’s readers, I welcome your advice and input.
Daniel,
Thank you for your openness and willingness to consider varied perspectives.
I think it is important that the AALS task force listen to, among others, graduates, faculty, and staff from non-ABA-approved law schools. Those within the ABA world can only speculate about what life is like outside of it. This was the case for me personally: I spent 12 years working at an ABA law school, as a tenure-track and then tenured professor and senior administrator, before becoming the dean of fully online Purdue Global Law School in 2016. Even though I was in California, which has dozens of non-ABA law schools, I was only vaguely aware of these other schools' existence and knew next to nothing about any particular non-ABA school.
I believe the purpose of legal education at most law schools is to prepare people to practice law, because this is what most law school graduates are destined to do. At schools other than elite schools, where students do not routinely pass the bar exam as a matter of course, that preparation for practice necessarily includes preparing them to pass the bar exam.
This should not be a controversial proposition. However, based on my experience at my ABA law school (which was not an elite school), this was not the view of many full-time faculty members. Instead, they viewed their role as, primarily, advancing their scholarship, and, secondarily, teaching students how to "think like lawyers." This is how they were taught, and it worked for them, so they believe it should work for the next generation.
Any serious reckoning of legal education needs to wrestle with at least two factors that shape what law schools are today and how they behave: cost and governance.
1. Cost. Many graduates of many traditional law schools do not come out earning enough to service their law school debt. And because the typical law school grad has debt well into the six figures, even those who can service it have a strong incentive to take the highest-paying job they can get, which often means representing corporations or wealthy individuals, regardless of what noble intentions led them to law school in the first place.
The single biggest expense of running a law school is the campus. The ABA Standards for Approval of Law Schools currently require a law school to have a campus to be eligible to apply for and obtain ABA approval. ABA-approved law schools can seek and receive "acquiescence" from the ABA Council to go beyond the ABA Standards' 50% cap on distance learning, and nearly two dozen have gotten such acquiescence to offer primarily or now even fully online law school programs. However, a fully online law school is still not eligible to apply for ABA approval, regardless of its rigor or outcomes.
The requirement of a campus drives up cost. I've analyzed the cost differential between the online and campus-based programs at the 22 ABA-approved law schools that offered hybrid or fully online options. The average program tuition for their campus-based programs (i.e., for all 3 years) was $153,000. The average for their online programs was 151,000, or roughly 1% less. The program tuition at fully online Purdue Global Law School is under $53,000, or nearly two-thirds less.
Is a physical campus essential to providing a quality legal education? I obviously believe otherwise. There are undoubtedly benefits to being on campus with your classmates and in a classroom with your professor (although for some students, there are real benefits to NOT being subject to the physical gaze of their peers). Are those benefits so essential that they are worth making law school three times as expensive as it might otherwise be, especially in an age when most of the things a lawyer does can be done entirely online? That is a question that needs to be examined.
2. Governance. Tenure is a political hot button, but it needs to be addressed. The ABA Standards appear to require a system of tenure, and every traditional law school has one. Tenure undoubtedly benefits the faculty who have it. Does it benefit students? Or the clients they will come to serve?
I attended Harvard Law School and was on the Harvard Law Review. Some of my professors published articles in some of the most prestigious journals in the nation. As a student, I had no idea what those articles may have been, and I frankly didn't care. Did the articles my professors wrote inform their teaching? I have no idea. Did the articles help them to prepare me for practice? The question is a non-starter, because with few exceptions, my professors didn't even attempt to prepare me for practice. And in my years as a practicing attorney, not once did a law review article meaningfully factor into my representation of clients (practitioners well know that if you're citing a law review article in a brief, it means you couldn't find a case to support you).
Governance is a critical question, because no matter what reforms the working group or anyone else recommends, as long as tenured faculty have control over faculty hiring, they will continue to reproduce the existing model, wherein scholarship is king and "too much" practice experience signals an insufficient commitment to scholarship. At my ABA law school, the last four tenure-track hires all had PhDs in addition to their JDs, even as the school's bar pass rates declined. Many professors were not interested in preparing students for practice because they didn't see it as their job, and some didn't feel qualified to do so, given how little or long ago they had practiced.
At traditional law schools, deans or other administrators can only beseech tenured professors to integrate bar readiness or legal practical skills (let alone AI competency) into their curricula. When I was acting dean at my prior law school, and was urging the faculty to integrate practice skills into the first-year curriculum, a tenure-track faculty member stood up at a faculty meeting and threatened that if I or anyone tried to tell him what or how he should teach, he would sue me for violating AAUP principles.
By contrast, at my current online, non-ABA law school, we do not have a tenure system (and yet we have full-time faculty who have been with us for decades). The faculty works collaboratively to determine the key outcomes of the curriculum and which assessment methods or other features should or should not be consistent across courses or years. We are able to integrate best practices like scaffolding and spaced repetition into our curriculum because faculty think about the curriculum outside the silos of their own courses, and are willing to make adjustments to their courses if doing so is a net benefit for students. We are currently updating our entire required curriculum to prepare students for the NextGen bar exam and to integrate AI competencies throughout. This level of coordination would be virtually impossible under a traditional tenure system. The faculty engage in this work willingly. But it is understood that a faculty member who viewed themselves as above or outside of this process would likely not be a good fit and would not last long.
I am not advocating that law schools shouldn't be allowed to have tenure. I am questioning whether every law school should be required to have it. For elite schools that can reasonably expect a substantial proportion of their graduates to enter academia and become scholars themselves, and who have little concern about their graduates passing the bar exam or being offered high-paying jobs upon graduation, tenure might be wholly appropriate. But requiring that every law school in the country utilize tenure, including smaller regional law schools, impedes their ability to make the significant curricular reforms that will be necessary if students are to be anything remotely approaching "practice-ready" upon graduation.
In the interests of full transparency, I have my doubts that the AALS, for whom promoting faculty scholarship is a core pillar of its mission, could objectively evaluate a call to rethink making tenure mandatory. I know my ideas may be controversial. But I believe they are too important not to share.
I guess I think the most vexing question is what precisely is the political foundation of a national accreditor? I don’t understand in this political moment why a conservator legislator in Austin and a liberal in Albany agree to that arrangement when their states are moving apart from each other on their conceptions of what role lawyers ought to play in the world.