Today's chapter in the continuing story of proposals to reform legal education comes from James L. Huffman, emeritus dean at Lewis & Clark Law School. Huffman's February 20 Wall Street Journal op-ed recommends eliminating ABA law school accreditation requirements. That may be a good idea, though not for the reasons that Huffman offers.
Mischaracterizing the Crisis
Huffman notes that the sharp decline in the number of law school applicants in recent years has created "a true crisis, and law schools are scrambling to figure out how to manage with fewer tuition-paying students." He proposes to end that crisis by helping marginal law schools devise a way to remain in business. Specifically, he thinks that removing most accreditation requirements would unleash a wave of innovation in legal education and "let a thousand flowers bloom."
Here’s a better idea: prune the garden.
A Thread of Insight
Staggering student debt combined with dismal job prospects confronting recent graduates causes Huffman to lament the oversupply of lawyers. He suggests that the ABA's task force "should start by looking within: The organization is a major source of the problem." Remarkably, he then lambastes the organization's accreditation standards as too restrictive.
Huffman’s non sequitur fails to reflect the ABA’s most obvious contribution to attorney oversupply: accrediting too many new schools—15 since 2003 alone. Likewise, Huffman observes correctly that the ABA has become a victim of regulatory capture, but doesn’t connect that phenomenon directly to the worst consequences of that victimization: deans free until recently to engage in deceptive behavior to fill their classrooms. Graduate employment rates looked great when schools could include short-term and part-time jobs, work that didn’t require a law degree, and temporary positions that the schools themselves had created.
Missing the Real Target
Why did deans do it? Because everybody did. Greater transparency risked deterring applicants, which had implications for a school’s U.S. News ranking. Unilateral candor threatened the business model.
Similarly, the rankings methodology has created powerful incentives to maximize spending on expensive new facilities. No ABA accreditation standard requires an established law school to construct a new library. But building that library can help attract applicants, and the added costs associated with it boost the “average expenditures per student” component of a school’s ranking.
Who’s to Blame?
Huffman is correct that the ABA has failed the profession. But so have deans who have allowed U.S. News rankings criteria to displace their independent judgment. Rankings have become central to their business models and the youngest generation of lawyers is paying the price.
Some metrics relating to emeritus dean Huffman’s own school prove it:
•At the time his op-ed appeared, the "Admissions" section of Lewis & Clark’s website displayed this headline: “Law school surges in U.S. News & World Report rankings.” The link took the reader to an article about the school’s nine-place jump to 58th in the 2013 edition.
•Full-time tuition and fees at Lewis & Clark currently exceed $38,000—a 50 percent increase over 2005, when the price tag stood at around $25,000.
•Lewis & Clark’s annual entries in the 2006 through 2012 Official Law School Guides included employment rates nine months after graduation ranging from 89 to 97 percent. But like most law schools, it achieved those spectacular results using the ABA's expansive definition of employed. Under the new rules first applicable to the class of 2011, nine months after graduation only 46 percent of Lewis & Clark graduates had full-time long-term jobs requiring a legal degree.
Reality Therapy
Huffman’s rhetoric about ABA accreditation requirements as entry barriers that inhibit competition and innovation misses the mark. Allowing schools to experiment with what he calls a "bonanza of legal education alternatives" ignores a harsh reality: There aren't enough law jobs for the number of graduates that schools already produce, and there won't be for a long time.
Allowing schools to increase their use of cheaper nontenured faculty and to offer online classes, as Huffman suggests, won’t solve that problem. In fact, absent other necessary reforms, cost reductions leading to lower tuition would likely increase the oversupply of lawyers.
The plethora of deans publishing op-eds in major newspapers presents a new danger. When they identify false issues and propose ineffectual reforms, they divert needed attention from the real causes of the current crisis. A thorough search for the origins of the lawyer bubble should lead most deans to a painful encounter with a mirror.
That’s an op-ed I’m eager to read.
Steven J. Harper is an adjunct professor at Northwestern University and author of the forthcoming The Lawyer Bubble: A Profession in Crisis (Basic Books, April 2, 2013). He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.
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