Failing Law Schools – A Moral Disaster: An interview with Brian Tamanaha

Failing Law Schools – A Moral Disaster: An interview with Brian Tamanaha

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welcome to books of our time brought to you by the massachusetts
school of law and seen nationwide today we shall discuss failing law
schools a new and much noted book about problems in many law schools the book’s author is brian tamanaha formerly the dean of saint john’s law
school and now a professor at the law school of washington university of saint
louis usually my guest joins me in the studio
at the massachusetts school of law in andover massachusetts because scheduling difficulties made this
impossible the interview was being conducted with
professor tamanaha in saint louis and me in andover and i am of course the regular host
of books of our time dean lawrence r. velvel of the
massachusetts school of law so brian thank you for for being with us and let me uh… begin by asking you to explain in broad terms why you think law schools are failing the cost of obtaining a law degree
today is far out of proportion to the economic return on the decree for uh… the majority of students so let me go
give you a few statistics that demonstrate that the ABA recently released statistics on
the class of two thousand and eleven uh… nine months after graduation only fifty five percent of graduates of
law schools nationwide fifty five percent had obtained permanent full-time jobs as lawyers meanwhile the uh… average debt of law
graduates upon graduation was over a hundred thousand dollars now the problem is not just that they’re
significant numbers of unemployed graduates it’s also that many of the
graduates who do obtain legal jobs don’t earn enough uh… to make the monthly payments on
the average debt in your book uh… you present in detail quite a few reasons why this unhappy
situation uh… has arisen and while I presume that uh… people are not arguing with
the statistics that you just presented what has been the response so far at
least uh… to your views uh… of the reasons why this situation
has come to pass uh… well first uh… let me say some
people are denying the argument I’m making that a law
decree is a highly risky investment uh… in our recent article in the national
law journal for example the current chair of the a_b_a_ section on legal
education suggested that my uh… that i was
exaggerating the situation uh so there are defenders of the
current uh… status quo on legal education they also suggest that i fail to take
into consideration all of the non-financial benefits of having a law
degree uh… and one of the points I to try to make
in the book is that uh… you can acknowledge that there are
many benefits to having a law degree but if you can’t make the monthly payments
on your debt then you’re in financial trouble and i try to focus in the book on that uh… I should say i haven’t heard many responses in detail to the
book yet uh… but in terms of the causel
arguments i i haven’t had many responses so far the basic argument i make is that the economics of of legal education have
gotten out of whack essentially because tuition has gone up every year for over
three decades and i mean every year and meanwhile pay at the for the bulk of
lawyers has stagnated the the corporate law legal market pays gone up quite nicely in that
respect and people who obtain those jobs are doing fine uh… but the pay for the bulk of
lawyers has not gone up and as a result with a they now pay much
more and yet the economic return they’ve been getting has not gone up uh… to keep pace with the rise in tuition that’s the basic problem uh… as i said i i haven’t heard too
many responses i expect there will be critical reactions to the arguments i’ve
made but thus far i haven’t heard any the book is very uh… east coast
centric wall street centric one might say uh… but that would include a you know the
corridor from charlottesville virginia up to new england it would also include the university of chicago and michigan
and northwestern and then uh… the uh… argument goes
it’s it’s sort of leaps the country kind of like the new yorker’s view of the country
uh… you know that cartoonish thing it kind of leaps
the center of the country to the west coast and in short the uh… the problems that you see with
regard to uh… cost and availability of jobs don’t exist to the same degree
everywhere what is your view of that criticism well the statistic I gave that there
were fifty that only fifty five percent of the graduates obtained full-time permanent legal jobs that’s
uh… that’s a nationwide statistic it’s not focused on any
particular area uh… but it is true that many very expensive law schools are located
in large urban areas the uh… law schools in new york city for example
as well as boston as well as chicago and l_a_ are the most expensive and so the the debt that students at these
schools come out with are much higher uh… when i said the average debt of
graduates nationwide is a hundred thousand need to emphasize that that the ten most indebted schools the
graduates from the ten most indebted schools had debt over a hundred forty
thousand and all of these schools are in major
urban areas many of them actually are are schools in l_a_ uh… chicago and new york schools in these urban areas are the
most expensive the debt of their graduates is the highest uh… and it’s also true that that their states flagship state
schools which i mention at the end of the book as as the last remaining affordable corner within accredited law schools many of those schools their their
tuition is fifteen thousand dollars a year the average debt is fifty
thousand and i suggest that these these schools are actually working well
that’s the impression i recieved both from your book and from hearing people who uh saw you and william henderson
speak at a conference recently and i was very pleased to hear it
because given the fact that uh… much will be said on this program which
is critical of law schools I feel an obligation to our own school
and to my faculty to point out that we were among that latter group that you’re
talking about that uh… having much lower tuition and students come out with
much less debt having made my reverse mea culpa
as one might say uh be that as it may you take the position the poor and the middle class if this
continues are going to be shut out from a traditional avenue of social and
economic ability mobility and from a very important part of this power
structure of the country maybe you could elaborate that sure i i i think there’s no question
that that is one of the worst consequences of the current
situation in the book i focus uh… on the consequences to individual
debtors but they’re also social consequences
erecting such an enormous economic barrier to access to the legal
profession so let me again give you some numbers private law schools the tuition at accredited
private law schools ranges from about thirty five thousand
to just over fifty thousand dollars a year uh… in addition you have to consider
living expenses uh… cost for books and so forth which at
many schools approximates eighteen to twenty thousand
dollars a year if you add that up the cost of a legal
education at a private law school totals between a hundred fifty and about
two hundred thousand dollars now obviously this isn’t only about the
poor middle class people from middle-class families can’t afford it as
well we’ve been unclear around here whether those figures you’re citing are for law school alone or whether
they include debt for college too the debt figures i use relate exclusively to
law school to which one would also then
have to pile onto college debt that’s correct okay go ahead and the average
debt of college graduates today is about twenty five thousand so
whatever debt numbers I give you you could add five thousand on top of that the cost of a of education at a private law school the
total cost ranges between a hundred fifty and two hundred thousand dollars
today and that actually begins to inhibit even
middle class people so I’m not even talking about the poor I think they’ve always been in a
difficult position uh… so the long-term social consequences of
this i think are quite significant there’s one other element of this that
matters and that is the legal profession in particular is a very elitist profession and what i mean by that is uh… people in law pay attention to
credentials and where you where you got your law degree from and the best example
we can point to today is our own supreme court which has uh… graduates of harvard and
yale number of uh… graduates from harvard
on the supreme court throughout history and its it’s adds up
to a bunch of schools combined so it’s not just that the costs of
becoming a lawyer is is getting higher and higher but the cost at the most elite schools
is the highest of all and as a result it seems not just that
we’ll have uh… more and more lawyers from the wealthy class but more and
more lawyers controlling elite positions within our government uh… within corporations will come from
the uh… the wealthiest class I think the exact figures are that on the supreme
court six lawyers uh… six justices are from harvard and uh ruth ginsburg was from
both harvard and columbia that’s right yes and three are from yale this means that two schools essentially are exercising control total control
at the very top of the profession and there’s no question i think that
it’s the most elitist oriented profession in the country i have read
engineers who find it unbelievable when they when they
read about the degree of elitism and seeking of
prestige in the legal profession and that’s engineers no less but I
take it that is the reason why uh… you say that nobody gave a darn about the
situation until it started to affect and afflict i guess one could say uh… the schools like harvard and yale yes the oversupply of lawyers the number of
graduates that we’ve been putting out exceeding the number of available
positions has been with us at least for ten years
i trace it back to two thousand and one i can’t I couldn’t go back earlier
because they changed the way in which they they counted uh… compiled the statistics but
essentially since two thousand and one we’ve graduated over a third more
lawyers than there were positions so unemployment unemployed lawyers range
from about sixty five percent to about seventy percent unemployed recent
graduates uh… but no one said anything about it
and no one said anything about it until the contraction in the legal market
which hit us uh… in two thousand and eight and when that contraction hit uh… that uh… people that were suffering were people
from elite law schools uh… they had their job offers rescinded they had
their starting dates put off for six months to a year and it’s when that happened that uh… everyone began paying attention isn’t
there some similarity uh… a problem in the medical and
dental professions which is too many graduates chasing the same kind of job in to few places meaning the big urban areas where big
law is practiced and ignoring the rural and middle parts
of the country uh… the dental profession also had an over supply problem and and
to deal with it they actually closed uh… a number of law schools including
georgetown’s that’s correct and so uh… we’ve not done that we’ve had an
over supply problem for as i said at least a decade and i believe much longer part of the problem has to do with the
argument or the belief that a law degree is a versatile degree and certainly
legal educators constantly say that that you can do many
things with a law degree it doesn’t mean you have to be a lawyer uh… that’s in contrast to a
dental degree which you are either a dentist or you’re you’re not doing anything uh so this is a big difference that in in
medical schools and dental schools they’ve managed to match the supply
with the available positions uh… you’re also right that a part of
that is encouraging people to go and serve underserved areas it’s not clear to me that we have that
same problem in law I mean there are certainly towns that don’t have lawyers but it’s part of the reason is because they these
towns the people in these towns don’t have enough money to afford lawyers so bringing a lawyer there I’m not it’s
not clear to me would would work economically now part of the reason it
doesn’t work economically is because our recent graduates have high debt so they cannot afford to serve the
underserved the uh… the low end legal market one of the uh… perverse things i point
out in the book is that we have at the same time a substantial
oversupply of lawyers law graduates to jobs and yet substantially
underserved legal needs the legal services corporation
comes out with a with a report basically every year documenting uh… huge numbers of
unfilled legal needs uh…in a recent report that they said that they
turned away one million about one million people who otherwise
would have qualified for their legal services but
they didn’t have sufficient manpower to do it for a lot of people some of whom do become practicing
lawyers and other others of whom do not going to law school is well i i don’t know how else to put it it’s a
dream come true historically the the legal profession
has been a path of of upward mobility uh… often uh… from immigrant
families second-generation my own family comes from okinawa and i was the first lawyer in the family uh… and uh… as you say it’s not just
about finances it’s also about status but it’s about much more than that lawyers uh… participate in in local
government uh… lawyers as you said become politicians uh… in various ways uh… lawyers have
an impact on the community and uh… i am concerned that that the economic barrier to access to
the legal profession that we’ve erected will have social implications beyond what i what we’re talking about beyond
just what it means to be a lawyer and pay the bills i couldn’t agree more with you i
mean it’s there’s a whole avenue of social
mobility and economic advancement being closed off much of the problem apparently has arisen because a couple of organizations managed to to uh… obtain a tremendous influence uh… over accreditation of law
schools and uh… if i understand your book correctly and
twenty years of my own study uh… they use the accrediting body which is the a_b_a_ section of legal
education and admissions to the bar to uh to require universities and law schools to do a lot of things which ended up
increased increasing costs dramatically now now these three organizations two of
whom you mentioned are the american bar association and the association of american law schools uh also the law school admissions
council now can you explain a little bit about how these three groups sort of
coordinated themselves and and sometimes have been called the big three
of legal education you don’t use that phrase can you explain as I say just a
little bit about how this cooperation uh… came into existence and what it’s
meant the ABA and the AALS together have essentially regulated law schools
the AALS through its own set of standards and the a_b_a_ through its
set of standards but I should emphasize that many of these are the same people they circulate through these positions uh… in the book i focus on the fact
that late in the nineteenth century early in
the twentieth century the school men the the people in
the law schools were unhappy that the a_b_a_ didn’t have
a particular body focused on law school so as a result they created two organizations one is the
a_b_a_ section on legal education and the other is the uh… association of american law
schools essentially to regulate law schools uh… in a way that uh… in my view ultimately had uh… the interests of legal educators
uh… uh… if not foremost in mind then at least
equal to the interests of creating uh…
institutions that train uh train lawyers and when i say that i say that because the standards
uh… incorporated elements that focused on on academia uh for example uh… standards related to teaching loads
standards and interpretations i should say some of these were not official
standards but they were interpretations put into the standards um… they also focused very heavily on
pay uh… initially on the pay that law professors earn now when these when these provisions were written in
they were always written in with the justification that it was for the
good of training lawyers they didn’t say that it was for our own
good that we want to teach less that we want to earn more their arguments where that if you don’t
allow us to earn more if we don’t earn more we won’t have as law professors who were any good we won’t be able to attract law
professors and that if you don’t allow us to uh… if you require us to teach too
much you won’t have scholars and to to teach law school we need
scholars to teach law school uh… i would say that the uh… legal academics have wanted to be
treated uh… as academics for purposes of what they do in their job and as lawyers for purposes of how much
money they make and you have some figures in your
book which even I as jaded as i have
become in twenty years found absolutely staggering about uh… law professors at some
schools many of them making in the three hundreds and even though they’re department of
justice as you again point out in your book and you’ve pointed out here told them to stop this price-fixing of salaries the mindset had
been built in and things have just continued on
apace maybe you could explain very briefly the process that was used by the
accrediting body to insure that salaries went ever up and let me say that i think as a
result of your book brian i read the book by thomas morgan which you
cited was was saying you
know we must get salaries up because otherwise we’ll have inept law
professors and he cited what the salaries were in those days and they were staggering they were
as staggeringly low as the salaries are staggeringly high today maybe you can just give a brief a view of the process that was used to uh to get salaries up i think the most current picture of
of faculty salaries can be gleaned from university of texas uh… the dean of university of texas
was recently fired essentially out of a faculty revolt over salaries and and monetary uh… awards the
professor’s were getting and i guess some of the faculty thought it was
unfair so they filed a public information request so the faculty salaries for texas were
posted online and the the numbers are shocking nineteen professors at at at texas earn over three hundred
thousand dollars another thirty-five professors earn
between two hundred and thirty and three hundred thousand dollars in addition to that i believe it was
twenty professors received one time grants in the form of forgivable loans ranging from seventy five thousand
dollars to over three hundred thousand dollars uh… in addition the dean himself got a
one-time grant of five hundred thousand dollars now these grants came came from the texas law foundation which
is a very wealthy foundation but nonetheless these are forms of
compensation uh… so we’re talking real money here uh… and uh this is texas i assume that the
elite law schools uh top five law schools are in the same
kind of money’s in play they’re two different sides to this uh… one is the low end salaries
salaries at most law schools and then one are the salaries at the high end law
schools at the low end law schools the the
the impact of the a_b_a_’s most direct the a_b_a_ provisions eventually said that uh… the and again these are more the
interpretations rather than the standards but they’re also official
interpretations they they were written into the body of rules uh suggested two things one is that
any school below a comparable median and by that they would compare to other like situated schools any school at which the salaries were
below comparable median raised questions about
the sufficiency of the compensation and then there was another provision
that said any school at the bottom is presumptively in non-compliance so the operation of these two provisions
was essentially to ratchet up salaries on the bottom because there’s always some law
school at the bottom so the argument is we’re at the bottom
or near the bottom we’re not in compliance and they’re always half of
the law schools at any given time below the comparable median so through these provisions uh… after doing accreditation
inspections reports could be written to say that your the faculties are uh…
not being appropriately compensated and in fact this was open knowledge at
the time i i quote dean cass of B.U. saying on looks like these
accreditation visits are really about trying to prime more money out of the dean the law school dean for the faculty and
then trying to pry more money out of the university uh… relative to the faculty uh… now all of those provisions have
been taken out uh… but nonetheless it had a ratcheting up affect and that
that affect continues today because those the the new levels of salary uh… subsequent raises are often based
on percentage of existing salary for example and and new hires come in and
are pegged on existing salary so that lifted up collectively the
bottom half the lower salaries at the lower range law schools that doesn’t explain the extraordinary
salaries that are now being obtained at the top law schools what explains that and now I’m talking about
harvard yale michigan essentially is competition for star
professors uh… law schools have really now engaged in
recruiting wars for more than ten years about fifteen years uh… even longer actually and this
relates to our extraordinary chase for prestige law
schools are now competing in we often say this is about u_s_ news and
and indeed it is but it’s also about the fact as i
mentioned earlier that that legal academia the legal profession and
generally but I want to emphasize legal academia in particular is very elite oriented very prestige
oriented and we sort of had this frenzy about
recruiting professors and one the the common ways to recruit
professors are to offer higher pay and to offer
lower teaching loads a few years ago uh… the daily cavalier of the
university of virginia which is the school’s the undergraduate school’s
newspaper found out and published the salaries of of all the professor’s at the virginia
law school this is public information somewhere in the
secretary of state’s office perhaps and brian i have to tell you not just that i was astounded at the
level of salaries but i was astounded at the fact that
some of the most prominent and uh… well-known and prestigious
professors persons whose names I had known for twenty five and thirty years were among the lower-paid persons on the faculty the goodies went to the people whom the
university was trying to hire away from elsewhere now they just brought up the rear and that’s just the
way it was when you point out that there’s been
this mad competition for professors these are basically as I have always understood it
I think your book says the same thing pretty much are research oriented professors and that leads to the question of number one how does one get to be a
prominent aside from the fact that you must write of course or at least type uh… how does one get to be a prominent research oriented
professor professor and why the extensive stress on
research and is this of benefit to the students to become prominent you have to write and
and what you write has to obtain recognition uh… but not all things are are equal and again going back to the
fact that we are a elite prestige oriented industry uh… professors at at elite schools have
have a much easier time placing their articles in elite journals uh… this has been known for some time
including several studies that i believe one in particular sent the
same article to on two different letterheads and using an elite letterhead obtained all
kinds of acceptances and uh…on non elite letterhead and didn’t get any so this is well known but but even
having said that there are elite professors ther’re professors at top law schools
that aren’t well-known and don’t do very much so the quality of the work has to be
there the quantity of the work has to be there uh… and and you get recognition i in
that way i think the the bottom line is that we see ourselves as as academics we like
emphasizing the academic side because it’s that that gets us lower teaching load it’s that that gets
us tenure lawyers don’t have tenure uh… and uh… it’s in our interest to do that
now i don’t want to just makes make this a matter of
cynicism I mean there are many law professors that genuinely are academics
that have an intellectual turn of mind i’ll give myself as an example I’ve now
written seven books on matters of legal theory by the way
I don’t right on the economics of the legal
profession uh… I do this job because i love
it however uh… the problem is we’ve become so academic
that it’s become to the exclusion of recognizing our role as as training
lawyers and an example of that uh… can be seen
in our hiring patterns in recent years uh… the the law schools have begun hiring
people with p_h_d_’s in other fields now it’s fine to have advance education
in another field the problem is that this comes at the expense of them having any experience in the legal
profession itself developing some knowledge about what it
means to be a lawyer because the vast majority of our
students are actually trying to get jobs as lawyers so we’re becoming even more academic
uh… again not because my problem’s not because
it’s not good to learn more but because it comes at the expense of
of knowledge about what it means to be a
lawyer in previous generations a generation ago i should say uh… uh… it was also the case that professors at elite law schools had relatively little practice but at law schools nationwide generally
professors had had some practice experience i worked as
a public defender for example before becoming a professor as well as as a lawyer in a developing country and
i thought that was necessary uh… to for my own sake to actually know
somewhat about the what it meant to be a lawyer and i think that was a more prevalent
attitude now it’s coming to the point where
people feel that if you practice too long you become tainted in some way that
makes you not well suited to be an academic and this is when i think our priorities
have really gotten uh… uh… out of whack that we’ve become so
academic that we’re almost anti lawyer and it’s a bizarre place for for law professors to occupy
because in fact our students pay a good sum
a huge sum to learn how to become lawyers and the idea that somehow this is not a priority of ours i think is just
really where we’ve gone wrong quick little story in support of your view there was a wonderful guy named howard
glickstein who was the dean for many years at the touro law school and he came to the academic world in
perhaps his early forties or so after a reasonably prominent career in practice and uh he found uh… when he was seeking a job
in the academic world that the fact that he had been a very
successful that he’d been a practitioner and a very successful one
particularly in the area of civil rights where he specialized that was regarded as a mark against him as a disqualifying factor and what can one say ’cause
howard was a wonderful person a fine dean and I must say it’s almost as in medical
school the professor’s never were anything but research oriented biologists and
endocrinologists and so forth and instead of as in the last two
years uh… when medical students having gone through two years of mainly
exclusively academic work now start to be taught by people who
keep hand a hand in the practice of medicine and you know they go around with doctors etc et-cetera we have the legal academy has been quite a bit
differently from the medical academy you’ve explained the salary uh… the method the methods by which salaries
were ratcheted up maybe we could discuss just a few hours
a few other of these rules that have like ever higher salaries contributed to higher costs and
therefore to higher tuitions uh… you mention extensively in the
book the hours of teaching per semester maybe you could elaborate on that i don’t believe the rules had that much
of an impact the there was a provision that suggested an
eight hour maximum uh… ten hours if your double if you’re
duplicating courses but most schools weren’t exceeding that and
and don’t today i think the real problem is uh… or or the cause uh… uh… has
simply been action on the part of law professors and the AALS in particular
i don’t mean the a b_a_ to to pay attention to how much law
professors teach and uh… as i say in the book uh… in
historic historically for much of the twentieth century a standard teaching load would be
about fourteen or fifteen credits sixteen at some and even higher at a few
law schools uh… whereas today the the standard teaching load is now about
twelve credits and and actually it’s a bit under that that’s per year not semester
that’s per year right so now now it’s basically six hours per
semester previously it was seven or eight per semester now this makes a difference
because essentially we teach one one course
uh… less than most law professors taught most of the century uh… now this matters because if if law
professors teach less courses you need more law professors overall to uh… to have the same course
coverage now this is i’m just giving you the
average load at elite law schools they now teach between eight and ten
credits a year so it’s even less than that uh… and this has contributed to the
increase in in the in the cost of law schools because law faculties have
expanded uh… we now and one sign of this and we’ve
expanded not just because of more research we also have more clinical
professors we have more legal writing professors so the uh… the number of students per lawyer’s
gone down per professor’s gone down from about
twenty five to one to about fifteen to one uh… the ratio of uh… professors to
students one of the reasons we have uh… more i would say many more
clinical and writing professors is that at least as to the clinical part of it probably not the writing part of it but after the critical part of it the uh… traditional law professoriat is as i think you’ve mentioned before here not equipped to teach it because they
have no experience with it yes many professors there ther’re
still professors with practice experience but indeed professors who have gone from a grad gone from law school to a
clerkship in one year and a firm and then obtain a position as a professor are not are
not equipped don’t have the and and they have no interest in teaching
writing they could but they have no interest in it and uh… nor do they have an interest
in teaching clinic so these were uh… law schools were
lacking in skills training and and we solved the problem essentially by hiring
other people to to do it to take care of it helps explain the expansion of clinics
and uh… and uh… legal writing positions which creates as you said a need for many
more professors which jacks up the cost which jacks up the tuitions yes maybe you would explain the student faculty ratio and its
effect including i might say that this always boggles me the student faculty ratio has i think nothing to do with the number of
students who sit in a classroom ’cause there are schools with low student faculty
in other words ten to one which is a lot of professors for each student and they have classrooms filled with a
hundred and twenty and a hundred and fifty people but but maybe you could explain the
rate at the ratio how it was used and what it meant well initially it was used through again through the accreditation process to suggest that if the ratio was too
high if there were too many students per faculty that the law school wasn’t being staffed
sufficiently uh… but in recent years that’s not
really been the main driver of it one is that u_s_ news measures student faculty
ratio it’s one of the factors they look at uh… but really the main i think the main
driver of it um… has been this really just institutional expansion that
that law schools about fifteen years ago uh… uh… what i call it was the harvard
affect harvard decided to expand and when harvard does something many law
schools follow and it’s remarkable to see i found a host
of law faculties announcing a major
expansion of the faculty even after the contraction of the legal market notre
dame announced that it would increase the size of the faculty by twenty five
percent this is really about institution
building about the idea that we get
bigger if we have more professors we’re better and as i say institutions began stockpiling legal
talent now this is one piece of it the other
piece of the expansion is that we were woefully doing a poor job of uh… training students and and and we expanded the clinical offerings
as well uh… but really it’s about not having any kind of
attention to the economics of it and exercising no restraint and because more professors cost more if
they cost more you need more students and you need higher tuition to pay for
it and there was a kind of loop in which uh… we haven’t mentioned but the the
number of graduates have gone up essentially every year and it’s being
driven the number of graduates as well as the
tuition by now it is a voracious need to cover our
expenses as faculties expanded you need to
increase your revenue faculties are the major budget item on law school budgets i was really surprised when your book
points out that harvard from i think you said
two thousand until today increased the size of it’s full-time law
faculty from eighty to a hundred and twenty yes and all i can say is it works for
elena kagan ’cause she’s on the supreme court now but i don’t think that should be the
criterion how about rules regarding
libraries and the size of libraries and the contents of libraries
the ABA specifies and again this is this goes way back to uh… to the
beginning in which they were writing writing standards that focused on us
being academic institutions and one of the requirements was that we
have significant library collections uh… now what first brought my attention to
it is that when i was uh… interim dean at saint john’s we happened to be
going through an accreditation re accreditation visit and the the school was operating
fine and yet there were objections about about the not the size of the collection
so much but the staffing and so forth and it was at that point that i began to look more carefully at how this
accreditation process works uh… you know they i think the right word to say is that
although people were were well-meaning uh… on these accreditation committees
they lost sight of the objective of the rules that is to ensure that you have a uh… an operation that’s training sound
lawyers and instead looked at what deans have
called output measures you know how many volumes do you have how many employees
do you have what are their salaries uh… and um… and this uh… this
occurred in connection with libraries this occurred in connection with facilities
with buildings how nice is the building is it suitable
to the to the size of the student body this is more and more problematical
because starting about about perhaps eight or
ten years ago on one would have to begin to question whether hard copy libraries almost are even necessary now i i love books i read books all the
time I write reviews I conduct television shows on them and you know i’m probably a throwback to
the uh to the nineteenth century but uh… today virtually everything that most lawyers and most
professors need are on the internet that’s just the way it is and a library could essentially be for
all but the but the research schools where people do arcane research it could essentially be a small room with a
bunch of computers that covers the form in a sense the for formally stated
rules and my question is to what extent if any were the problems created not by the rules as written which
sometimes on their face seem reasonably innocuous you know you shall have a a
competent building yeah well who could argue with that but but uh… but by the way the rules have been
enforced in a process to put it nicely is kept confidential is kept secret would be a less nice way
to put it yeah i think actually the the process
was was more important than the rules if you
look at the rules themselves they don’t explicitly require some of
the things i’m objecting to i mean there’s language there that provides a
basis for arguing from it but what what the accreditation process
involved was essentially legal educators groups of legal educators going to law
schools uh… faculty members at those schools uh… putting together essentially plans for the school in
which they were able to work things that they
desire into the plans in and when
communicating with the site inspection teams and the site inspection teams would then
write these up in the reports and by that i mean uh… the the inspection teams would ask
about how much research have you been doing how much support are you getting
for the research the the provision the ABA provisions
didn’t say you have to pay for research they suggest that law school should engage in research and
support faculty research but it they’re not explicitly requiring you must you must uh… provide sabbaticals paid sabbaticals it
doesn’t say that in particular but it was interpreted that way and the reports would then uh… raise objections if faculty
research wasn’t being supported uh… so in my view the the the the culture
that revolved around the accredidation process was much more important than the actual rules
themselves in bringing about uh… conditions that law professors
wanted for ourselves and again i don’t i don’t mean this to
be entirely cynical i think people genuinely believe that that these are all good things for law
schools law schools should have ample research time we shouldn’t
teach too much it’s not good uh… so they genuinely believe these
that these were good things and that through these beliefs reports
were written in a way that required law schools to to to do these things uh… so it’s not just about the rules i
i think you used the right word if you just read the rules they seem quite
reasonable it’s about how the rules were
interpreted and applied utilized in the reports that were
written to impose things that that the rules
themselves did not necessarily require i have always been of the opinion that there was one person assisted by a coterie of others who fundamentally ran this show and was
heavily responsible for what happened now without mentioning names would you
agree or disagree with that i’m not a law school insider and uh… you know much of my research just comes
out of publicly available documents my experience with the accreditation
process was on the receiving end as the interim dean as i suggested i know many people who have engaged in site
inspections uh… and i’ve heard many rumors about
uh… what you’re referring to but i don’t know I don’t know about it from my own personal I’ll tell you one thing that’s a fact
and it’s something attributable to a person whom i regard as a member of
this coterie who was a very famous person in new york city and if I go beyond that that uh… he will
become very easily identifiable and he said and he was also a very
uh… famous person in ABA accreditation he said there’s not going to be a honda law
school and you know we thought that said it all
there is not going to be a honda law school you can’t have a low price
competent school I mean competitive pressures uh… were uh were against that in the in nineteen ninety five and nineteen ninety
six uh… that uh… the uh… american bar
association uh… on behalf of its accrediting arm uh… entered into a consent decree with
the department of justice which brought an anti-trust case uh… i guess i have to concede at our
instigation ’cause we went to the uh… department of justice and then you point out that the ABA uh… to my amazement surprise shock use whatever word one wishes uh… proceeded to violate that consent decree uh the main violation
was that the the committees were supposed to be
staffed with people out not just legal educators that was a part of the problem the charge was that that legal educators captured the
accreditation process and mainly because we were the ones going out and and doing doing these things and sitting
on committees that would make these decisions and uh… so they were supposed to bring
in uh university administrators lawyers to participate and the ABA was not following those the the terms of the consent decree uh… why the a_b_a_ did that i i
have no idea i think it was was it’s it’s inexplicable to me that they wouldn’t uh… make a an effort to comply with the
letter of of this decree we actually agree you know
uh… uh… i don’t think you’ve uh you’ve
investigated this ’cause it just wasn’t your interest but uh… i can tell you that the person who was put in charge was
the a_b_a_ general council who had overseen the section when it was doing all the
bad things that it was supposed to stop and then one thing the a_b_a_ did which
uh… we explained it to the department of
justice but frankly speaking it didn’t care is that when the a_b_a_ put non non-professors non academics on these
committees that quite often were judges or
lawyers who had been academics had sometimes even been a_b_a_ accreditors that who obviously agreed with what the
uh… section had been doing so uh… nobody ever said the section wasn’t
shrewd well that wouldn’t have violated the consent
decree in and of itself so they actually went beyond that and didn’t
staff the committee’s with non academics or at least
sufficient numbers of them right right yes I understand and you said that
very clearly in the book i was just pointing out a little filipto
additional right yeah of a point you make in the book
the extent of the increase in tuitions between nineteen eighty five and let’s say two thousand and ten I think
the best way to do it is compare it to the rate of inflation so the average tuition at private law
schools uh… in two thousand and eleven was just a shade under forty thousand and had it gone up uh… just at the rate of inflation it
would be somewhere around sixteen thousand uh… uh… and public school i believe is now
up to about eighteen or nineteen thousand and had it gone up with the rate of
inflation it would have been around four or five thousand so you can see just from those
comparisons that um… that we’ve gone up far in excess of the
rate of inflation uh and again i i i need to repeat that
i’m just giving average numbers there are private law schools uh yale’s
tuition is over fifty thousand columbia’s tuition is over fifty
thousand uh… and there and there are public law
schools that have out-of-state tuition that it’s over fifty thousand
that’s michigan virginia california uh berkeley u_c_l_a_ when we started a
school and were charging eight schools around here like harvard and BU bc so forth were charging roughly around twelve
thirteen fourteen so now we’re charging seventeen and they’re
charging forty and fifty yeah wow all you can say is wow and you say in the book I’ve said here if i remember correctly
uh… is u is very important and that is the impact and the ways in which there is an impact of the law school rankings put out by
u_s_ news and world report the ranking uh… really controls has a really
controlling influence on legal academia uh… we have we have two controlling
influences one is the accreditation template as applied by academics and the other is the u_s_ news
formula and what law schools have done essentially is is uh… tailor their
policies in relation their admissions policies their
scholarship policies uh… in relation to the metrics measured
in in u_s_ news uh… I detail several of the of the quite negative consequences in
the book uh… of of what we’ve done but i want
to specify one in particular and that is the allocation of
scholarships uh… in up up through the mid nineties the the majority of scholarship money went
was distributed on a need basis and that in other words it went to students who came from uh… lower economic circumstances by the mid two thousands this had flipped uh… in proportion and the majority of
scholarship money is now allocated based on merit and what i mean by merit
essentially is that the bottom half the students coming into the class with
the bottom half l s_a_t_ scores and g_p_a_’s would pay full price and the students coming in on the top
half with the better g_p_a_ scores and better LSAT and it was primarily
LSAT would get discounts some some would pay
half tuition and some would pay no tuition uh… now the there’s a perverse consequence
that applies to this that follows from this and that is that students in the bottom half
although this doesn’t hold entirely often do more poorly and and if they do
poorly in law school they don’t get good jobs coming out of law school so the effect i call a reverse robin
hood affect we essentially have a redistribution scheme between the
students in which the students likely to be
poorer coming out are actually subsidizing the education of the students who are likely
to earn more money coming out uh… it’s just one of uh… many
strange things we’ve done and this relates this this relates directly to u_s_ news i’m sorry this relates to what our shift in scholarship policies is a
direct directly related to u_s_ news uh… legal educators often complain
about u_s_ news and blame u_s_ news for all the things we’ve been doing that are
highly questionable including uh putting up employment numbers that are misleading uh… including two schools that
submitted false lsat g_p_a_ medians to the a_b_a_ so we often say it’s you know it’s u_s_
news that made us do it uh… and i i think while there’s truth to that we also need
to keep in mind that law schools are making
choices and we’ve kind of lost our way in this
competition for ranking and prestige we’ve we lost our way about what our own
priorities are the things that you have mentioned extensively in the book and briefly here and they include it would be nice to call them untruths that have been put forward by law
schools and uh… their representatives yeah they strike me as a moral disaster and i think that you used the word moral
somewhere in the book but maybe i don’t remember correctly can i would it be correct to interpret
the comments you just made as de facto saying we have lost our way and then a moral
disaster has been created once all this became
revealed deans have lost their jobs uh… uh…
admissions people have lost their jobs and of course one of the reasons they did it as you again point out is god forbid that a school should fall one
or two or three places in the u_s_ news rankings from say twenty first to
twenty fourth I mean it just hits the fan the
alumni go nuts the students go crazy and uh… deans uh… I won’t say understandably ’cause i don’t
think there’s any uh… understanding it in the in in in
the sense of the word understandably and deans uh and and admissions
people do these things because they literally fear for their jobs uh… the a_b_a_ has lobbied and then by the seventies had
succeeded in having most state supreme courts not
all but most maybe forty five out of fifty require graduation from an a_b_a_ school
in order for a student to to take the bar in the state uh… the schools which could have thumbed
their nose at the a_b_a_ chicago harvard yale stanford michigan etcetera they didn’t care enough to do anything
about it the state court saying that you had to
be a graduate of an ABA-school is what permitted the imposition of these various rules
now you say well obviously then the way to correct this is for the state
supreme courts to permit there to be other ways by which a school’s graduates uh… could uh become eligible to
take the bar uh… perhaps uh… approval or
accreditation by some organization other then the a_b_a_ i mean our school’s accredited by the new
england association of schools and colleges for these very reasons and my question to you is is this
realistic is this at all likely to happen i hope the state supreme court
justices read my book uh… if they do uh… i think the chance of
it happening might be stronger uh… frankly i don’t think any of the
proposals i suggest in the end are likely to happen i believe law schools uh… like the status quo and will fight to
retain it i quoted a a montana court opinion in which the
dissenting judges made some of the same objections i i
make in the book… maybe it’s different to hear it from an academic
from someone on the inside saying look there’s something to this and we lost our way to answer your question
directly i do not believe it’s likely to happen I think it is sad brian the uh
montana uh… opinion which you quoted which we
here in andover greeted with great enthusiasm when it came out is what ten or fifteen years old now
yes and it has not caused much to happen no sad sad well let me ask you if there’s anything
else that you would like to say it’s not just about accreditation uh
bodies that’s driving this i think a very big driver unfortunately is the federal loan
system and the reform i think uh… ultimately
most important in all of this is to uh… impose restrictions on
federal loans let me just explain up until
recently the federal government guaranteed
student loans with no limit and then uh… a few years ago they began
providing student loans directly through the
graduate plus program as long as these loans are provided
without any evaluation of the likelihood of repayment any evaluation of the
economic return without any limits on the size of the
loan that students can take out law schools will continue to raise
tuition as long as they have students who are willing to come the federal loan program provides them with the ability
to come uh so in the book i propose different
sorts of caps that and and uh… outcome tests for loans now the main opposition to these
proposals will come from legal academics who say that’s outrageous or the loans are
important to provide access to the legal profession and my response to that objection is that what limits access
today isn’t the unavailability of federal loans what
limits access today is the extraordinarily high tuition that we
charge and if law schools are really committed
about access we can provide need-based financial aid uh… so the so what’s inhibiting access
is us the fact that our tuition is now up to fifty thousand dollars a year uh… so i hope the senators i hope someone reads
this part of it the op ed in the new york times that i
published two weeks ago focused on the federal loan program for that reason i
wanted to communicate to to senators that you need to take a
look at the impact of providing unlimited funds no questions
asked as long as that’s the case tuition will
continue to go up the problem seems to me to be that not all law schools can afford the high aid that would solve the problem under your
suggestion that the law schools which can afford it are quite often perhaps not always but
quite often uh… those schools which whose whose
uh… uh student bodies are comprised of the already affluent and that schools which make an effort to educate people who have been shut out of uh…
education generally and legal education in particular and who accordingly charge very low tuitions probably cannot afford to stay in business without federal loans and if they can’t stay or
guarantees and if they can’t stay in business
then the very schools that are making an effort to provide social and economic mobility
will be the ones harmed by curtailment of federal loans well that’s the objection and you know what do you think about that uh… you’re right except insofar as
that should be an important consideration when the cap is set so for example i propose two different
cap kinds of caps one is to cap how much money an
individual student can borrow from the federal government the other is to cap how much money any
particular law school can get from the federal government in any given year and and so so the cap can be set at a
level that takes into consideration precisely your concern the figure i came up with and it could be any
i was just using it as an example is to say that um… that law students should
not be allowed to borrow more than a hundred twenty thousand dollars which is a lot by the way now the that’s what i was gonna say so so really
all that’s saying to law schools is set your tuition at twenty thousand you’ll
be okay in fact you can set it at twenty five
thousand you’ll still be okay uh… so i wasn’t saying cut it off of
course we need access and students need to borrow i borrowed money to go to law school
my parents are school teachers uh… the the problem is that because
there’s no cap there are law schools with average
indebtedness of a hundred fifty thousand and these students are not going to pay
pay pay they will not pay this money back uh… especially if you look at the
uh… the schools and the placement rate upon graduation which i have uh so i’m really setting a cap as a way
of protecting the students ultimately from taking on debt that will be
unaffordable to them and imposing restrictions on the law
schools in terms of how high they set their tuition uh… but i absolutely agree with you that we need to whatever caps are put
into place need to be done with attention to maintaining access to the audience thank you for being with
us and we hope that you will be with us
again next time

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