May 4, 2007

Threat to Tenure at Law Schools

The American Bar Association — at the urging of some law deans and to the dismay of many law professors — is considering an end to having tenure systems be one requirement for law school accreditation. A special task force of the ABA has been working on a set of recommendations about accreditation and will not submit its findings until next month. But reports about what the group may recommend, and what law deans have urged it to recommend, have been circulating in recent weeks — and e-mail has been flying among law professors.

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At a meeting of the ABA Accreditation Policy Task Force last week, a preliminary vote found by a slim majority that they should recommend that most if not all terms and conditions of employment should not be part of the requirements for accreditation, according to Gary Palm, a retired clinical law professor at the University of Chicago who is a former member of the ABA’s accrediting body and who was present at the meeting. While the vote is not by any means final and does not definitively suggest any particular outcome in the final report, it does signal the split of opinion on the task force and the direction in which its recommendations were at least recently headed.

Members will not comment on the deliberations of the task force, whose report is due on June 9 — along with a separate report by the minority, Palm said. But its recommendations to the ABA’s accrediting arm, the council of the Section of Legal Education and Admissions to the Bar, will be closely watched. The issue of employment is not explicitly mentioned in the original mandate of the task force, but outside groups seem to have placed it on the agenda.

For some time, the American Law Deans Association has been advocating that the ABA stop regulating the employment contracts of accredited law schools. Currently, tenure and academic freedom are mandated for regular faculty, along with protections “reasonably similar to tenure” afforded to full-time clinical faculty members, and measures to protect the academic freedom of legal writing teachers. Library directors and deans are also required to have tenure or tenure-track faculty appointments. The law deans’ association itself does not have a position on tenure, but it stresses the autonomy of law schools to formulate their own employment policies and the gains in innovation that would come through loosening the standards.

In a transcript of an open forum held by the accreditation task force in January, David Van Zandt, the dean of Northwestern University School of Law and president of the law deans group, read from a statement: “ALDA urges the task force to recommend that the council remove from the standards all references to terms and conditions of employment and urges that the council do so as soon as possible,” he said. “To our knowledge, requiring specific terms and conditions has no precedent in the accreditation standards of other educational institutions and programs and do not for very good reason.”

The forum was held at the annual meeting of the Association of American Law Schools, where on the same day the general membership of the law deans association had decided not to endorse the position of the organization’s board. The board has been criticized in the past for representing its actions as those of the entire body. “There are several members in ALDA who believe it is not nearly as representative as it should be,” said W. H. Knight, Jr., dean of the University of Washington School of Law in Seattle and a member of the board who believes the ABA should “limit the scope of its inquiries” in employment matters. “It looks as if all American law deans are subscribing to one particular position when that’s not necessarily the case.”

Others have even disputed whether statements made on behalf of the board represent all of the board’s members. On March 8, 2006, the former president of ALDA and dean of the University of Chicago Law School, Saul Levmore, sent comments “on behalf of the Board of Directors” of the group to the Department of Education voicing its concerns about the ABA’s accreditation powers extending to the enforcement of “terms and conditions of employment that are extrinsic to educational quality.” Van Zandt told Inside Higher Ed that it was a “unanimous statement of ALDA’s board of directors,” but at least one member said he does not recall a formal vote, and another said he doesn’t believe it was unanimous.

Some observers see the law deans group’s position as a strategic move to undermine tenure. “The public record certainly suggests that this position would erode the requirement protections of tenure, tenure-track status, and professional security that various legal educators currently hold under the accreditation regime that has been in place for many years,” said Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston Law Center and a former member of the ABA council who left to join the AALS executive committee.

Van Zandt said that wasn’t the case. “Sometimes some people portray this as an attack on tenure,” he said. “The real issue is whether or not you’re required to have tenure by an outside body such as the ABA. Not that we don’t want to have that institution.”

One reason that tenure defenders are skeptical of the law deans’ position is that its chief proponent has faced scrutiny — under the current regulations of the ABA — over his institution’s employment conditions. Among the standards in question were whether the Northwestern law school, where Van Zandt is dean, allowed its clinical faculty enough security as well as participation in governance and whether its law library director had a secure faculty position per ABA requirements. In November, the accreditation committee found the school in compliance with its standards but requested an update on the search for a new library director by May 1. Van Zandt would not comment on the status of the proceedings.

“I think ABA’s ruling on Northwestern and other schools just increased attention to” the employment issue, Van Zandt said. He mentioned the legal clinic, which was under review by the bar association committee, as an example of what ALDA was advocating. “We’ve grown a tremendous clinic here. Would we have been able to do that if we had to tenure everybody? Probably not.”

“I have to be a tenured person. That’s not right. A school could have a dean who’s a business leader or a lawyer who a school might not want to give tenure to, and they should be able to do that,” he added.

A number of groups — those representing clinical faculty and law librarians, for instance — have submitted documents in opposition to ALDA’s position on employment requirements as well as the Northwestern ruling. The president of the Clinical Legal Education Association, Paulette J. Williams, wrote to the ABA council in March that “under the committee’s ruling” on Northwestern, “a law school can have one-day, at will contracts that have academic freedom protections; however, this is not consistent with the ‘form of security of position reasonably similar to tenure’” outlined in the bar association’s standards.

Palm said the task force remained sensitive to protecting academic freedom generally, and to the “special problems” of clinical faculty. But he remained skeptical that they were the only ones who had to worry. “Regular nonclinical teachers should be concerned about tenure,” he said, implying that if accreditation would stop requiring tenure, schools would not want to keep it on their own.

The enhanced scrutiny of the issue comes at a time when the bar association is feeling pressure on other fronts as well, as it seeks to retain its Education Department recognition as the nation’s law school accrediting agency. Groups opposing affirmative action have criticized the accrediting organization for its diversity standards, while some smaller schools have sued because of what they say is insufficient accommodation in the ABA’s regulatory obligations. “This is the perfect storm of problems for law-school accreditation,” Olivas said.

But in the end, the debate boils down to how to preserve academic freedom. The law deans group tends to “sweep very broadly in terms of focusing not only on clinical faculty but on tenure per se,” said Jonathan Knight, who handles academic freedom and tenure issues for the American Association of University Professors. “They’re entitled to those views about tenure as a proper concern of the ABA; whether the ABA should be in the accrediting business is up to the ABA, of course, but for us, the argument that academic freedom can be ensured by other mechanisms besides tenure has proven to be very much incorrect.”

Pauline A. Schneider, the chairwoman of the task force and a partner at the law firm Orrick, Herrington & Sutcliffe in Washington, wouldn’t comment on the proceedings, but said, “We continue to work to address each of the issues that we circulated for public comment and input.”

— Andy Guess

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Comments

ABA has no accreditation skill

The ABA is a labor union. It knows more about job security than accreditation.

By any goal you wish to measure them, percent of population served, problems avoided, confidence instilled, the ABA is a miserable failure at service to the public. Rather stupid to turn over accreditation to an organization that places public service last.

The main problem is the lack of public funding to pay for a quality legal system. It appears the ABA will do the work for free. There is no free lunch. As a result of looking for one, we have crowded jails and a politically correct justice system.

The conference of judges must begin to fund their role in life rather than delegate the responsibility to the ABA. The public deserves well educated members of the legal profession. They are now nothing more than a social organization designed to protect the power structure.

With the ABA out of the way, the highest courts of every state will be free to be innovative to solve problems that face the public.

To put the interests of the public in first place requires repeal of the Telecommunications Act of 1996. With quality reporting of the reasons for the problems, including the control exercised by the ABA, the public will fund a quality judicial system.

William Sumner Scott, J.D.

Judicial Equality Foundation, Inc.

wss@jefound.org

William Sumner Scott, J.D., at 8:45 am EDT on May 4, 2007

Tenure’s True Cost

Tenure creates far more cost than it’s worth. Protecting academic freedom in a university is absolutely essential, but there are other ways to accomplish that without giving a select group (faculty who teach certain types of courses and have jumped a few publication hoops for six years) total protection while not giving it to everyone else (students, junior faculty, clinical and writing faculty, staff). (NOte: If it’s ok for clinical faculty to have protection “similar to tenure,” then it should be ok for classroom faculty as well.) Once tenured, there are many in the academy who adopt an entitlement mentality whereunder they rarely or never do research, teach classes from the same notes year after year until they are well past stale, and fail to meet minimal standards of service and compliance, yet are largely untouchable. And why should a library director or a dean, both of whom are much more administrators or fund raisers than academics, be given such absolute protection if they screw up in their jobs and are not quality teachers/scholars? Tenure is a concept doggedly protected by the AAUP much like featherbedding was by the railroad unions back in the old days. It’s time for a new creative approach that protects the academic freedom of everyone on campus (not just the senior classroom faculty) but does not insulate incompetent or lazy faculty who fail to fulfill their responsibilities.

Long-Time Prof., at 9:55 am EDT on May 4, 2007

question for Mr. Scott

Mr. Scott, I am quite surprised to see your comment, and even more surprised that you inform us of your credentials, because, it is rare that we see one of the many people from the Judicial Equality Foundation commenting on these matters. That said, I think that you have some misconceptions about the ABA. Further, some of your points do not seem to relate to the post above, but I feel like I need to address them.

The ABA is not a labor union. The ABA is a voluntary organization of lawyers and law-related entities. Individuals can choose to join if they want. Membership in the ABA does not invovle collective bargaining, and when law professors join unions they do not join the ABA. One of the things the ABA does is “accredit” law schools based on a set of criteria. This criteria binds nobody. Students are free to attend schools that are not accredited by the ABA. Many states rely on graduation from an ABA-accredited law school as a means to determine which graduates of out-of-state law schools they will recognize. Moreover, although it is no guarantee of quality, most other lawyers and people that are in the free market for lawyers consider graduates of schools without ABA accreditation to be inferior. I would never hire one of them, because, as a rational participant in the free market, I don’t want to take this risk.

The ABA does serve the public. Whether it “succeeds” at it or not is subjective. The fact that they have a set of standards for schools and schools try and meet those standards (whether or not you agree wit them) is a “service” to the public because it enables consumers of legal services to know more about a given school. At a minimum, someone considering retaining a lawyer from a non-accredited school can simply ask the lawyer why the school chose not to meet the ABA standards. The consumer can then decide for themselves whether that excuse is valid.

I am not sure what your complaints about a “quality” legal system entail, and why they relate to the ABA. The “quality” of a legal system is a matter of perspective. Some people believe that an unfunded legal system is best. The public “deserves” whatever government it gets. Whatever the case, I think you are confusing a political complaint about the nature of laws with a critique of the ABA.

It is unclear what “conference of judges” you are referring to. Perhaps you could provide specifics. I know that at the JEF you do a lot of research, so I would be anxious to know what “Conference of Judges” you referred to.

Next, “High Courts of Every States” are not always the ones that run the bar examination process or manage state accrediting of law schools. It is unclear how the ABA prevents law reform or hinders the administrative decision-making of courts (this is as opposed to the judicial decision-making.) I think that you might have thrown this in for a rhetorical flourish that has nothing to do with the subject at hand.

Your reference to the “Telecommunications Act of 1996″ seems to make no sense. Obviously it is relevant to the above post, but you would need to explain how the ABA, accrediting and the Telecommunications Act of 1996 somehow combine to form an evil triangle of gloom and doom and injustice.

Finally, it is unclear what the “problems” in the judicial system you refer to are. You seem to have a lot to complain about. But no specifics. The Judicial Equality Function doesn’t seem to actually litigate or lobby. Maybe I am missing something in my research, but it seems strange that you have so many specific ideas for change but have made no demonstrable efforts to implement any of them, or even explain what they are in concrete terms that would assuage any constitutional concerns.

Finally, can you please explain what your comments have to do with the article and the debate described wihin it. I know must have been relevant, otherwise you wouldn’t have posted it.

Larry, at 10:30 am EDT on May 4, 2007

ABA’s empty faculty standard

Here’s the ABA’s minimum standard for faculty: http://www.abanet.org/legaled/standards/chapter4.html

Standard 401. QUALIFICATIONSA law school shall have a faculty whose qualifications and experience are appropriate to the stated mission of the law school and to maintaining a program of legal education consistent with the requirements of Standards 301 and 302. The faculty shall possesses [sic!] a high degree of competence, as demonstrated by its education, experience in teaching or practice, teaching effectiveness, and scholarly research and writing.

Glen S. McGhee, Dir., at Florida Higher Education Accountability Project, at 11:35 am EDT on May 4, 2007

“The ABA is not a labor union. The ABA is a voluntary organization of lawyers and law-related entities.”

Right. And if you voluntarily choose to attend an institution the ABA won’t voluntarily accredit for reasons having nothing to do with the quality of its legal education, don’t act too surprised when your state’s not so voluntary bar refuses to allow you to sit voluntarily for an exam.

Then again, no one ever put a gun to your head and said you have to be a lawyer, so I guess that in the grand scheme of things, this whole racket really is voluntary, after all. I’m still a little hazy as to how this is supposed to distinguish the ABA from a labor union, however.

Xrlq, at 2:35 pm EDT on May 4, 2007

Stop the sterotypes!

Well, It seems as though Scott Jaschik accomplished his mission. Find a single Republican that is questioning a “questionable” research project and the entire conservative movement gets labeled as “anti-intellectual.” According to Scott, the funding was continued. So why even write the article? Are we suggesting that congress does not have the right to question how taxpayers money is being spent? Sorry...whether it’s the Iraq War or a research grant...that’s their job!

Robert Lash, Lash, at 3:50 pm EDT on May 4, 2007

No System Better Than What We Have

“Some people believe that an unfunded legal system is best.”

After watching Alberto Gonzales perform his tap dance, it is a surprise to me that the ABA would want to make press about any subject. Unfunded is what we have — it certainly isn’t good enough —

Quizzacal, at 3:50 pm EDT on May 4, 2007

response to XRLQ

XRLQ, Labor unions represent employees in the context of collective bargaining agreements. They organize strikes and negotiate on behalf of employees. Depending on the jurisdiction, membership in a union may be mandatory at certain employers. Likewise, because employees may not have elected to join a union, there might be not union capable of engaging in collective bargaining at a business.

The ABA on the other hand does none of these things. It cannot bargain on behalf of lawyers. Lawyers are never obligated to join the ABA. There is no prohibition against supervisors or management joining the ABA. The ABA’s power comes more from its ability to generate consensus and foster discussion amongst lawyers. This bothers people, and some people question whether there really are “consensuses” are just a lot of committees that attract lawyers with agendas. However, since the ABA attracts extremely large numbers of lawyers, it is hard to argue that an opinion taken by one of its committees wasn’t informed by its membership.

Quite frankly, I think there is a good reason that graduates of non-ABA accredited schools are shunned. Jurisdictions don’t know if their graduates will provide a high level of representation. States have a valid interest in ensuring that the people that represent people legally are competent. Most states don’t have the resources to send out delegations to every law school (there are law schools in 49 states) and investigate whether they are really doing a good job. So, they rely on the ABA. That is what is happening.

Larry, at 3:55 pm EDT on May 4, 2007

“One of the things the ABA does is “accredit” law schools based on a set of criteria. This criteria binds nobody. Students are free to attend schools that are not accredited by the ABA. Many states rely on graduation from an ABA-accredited law school as a means to determine which graduates of out-of-state law schools they will recognize.”

Larry—what the ABA does is more than that, though. Graduating from an ABA accredited law school is a requirement in many states to be able to be admitted to the bar in order to practice law. This would be fine if the requirements for ABA accreditation were as generic as being a good school and providing a good legal education. I don’t think it’s anything of the sort.

The ABA determined what that it knew what constituted a good school and a good legal education in the 1920s and set that in stone, the results be damned. They have continued. I’d argue that (and for that matter, I don’t there’s any shortage of law students who would disagree with me here) the standards they did decide on were incredibly flawed. The problem is there’s no way to experiment—a law school can’t show it would be better if they ran classes another way, made law school shorter, trained students differently, etc. because they’d lose their accreditation if they tried it. They’d have students who literally aren’t allowed to practice in many cases.

The ABA has accredited so many law schools, that when you get to unaccredited schools, (no offense to anybody but) the quality of students entering them isn’t that high to begin with. With the lack of money and the lack of students to pick from, I don’t see a low quality among un-accredited graduates as saying that much about the merits of the criteria the ABA sets for accredited schools.

ASD, at 7:10 pm EDT on May 4, 2007

Eugene Volokh’s observation

I trust Prof. Volokh will excuse my quotation or misquotation of his remarks of 7/14/06.

“As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the legal profession so as to decrease competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.”

Jack Olson, at 7:10 pm EDT on May 4, 2007

Please stop

There is no “total protection” in tenure. Sadly, too few people know this. Worse, others deliberately perpetuate the myth of total protection. Both are shameful.

Andrew Purvis, at 7:15 am EDT on May 5, 2007

The ABA and everyone else

ASD and Mr. Olsen, I think we agree on some points. However, what constitutes a “good” schools is quite a subjective matter. There seems to be quite some disagreement, and nobody will ever provide an objective definition of “good.” Whatever the case, like most lawyers, I do have stereotypes about people that went to certain schools, and if someone went to a non-ABA accredited school, my stereotype is quite negative.

Law schools can experiment with different models. In fact, some do. However, they do that after they have ABA accreditation (and usually after they are ranked above 40 or so by US News). They figure that too much experimentation might injure the reputation of their students. I mean, who wants to be a student that was educated as part of a “Failed experiment.”

As a general matter, students from schools that are not accredited by the ABA could be accredited by their states. They wouldn’t be able to practice outside that state.

Mr. Olsen, Eugene Volkh (who teaches at an accredited school) and is even more snobby than I about unaccredited schools, I think, offers a flawed arguments. First of all, states are free to ignore ABA accreditation. But, they do so at their own peril. Secondly, I am somewhat surprised that someone that fancies himself a libertarian (though, I don’t think he really is since he spent a good part of his career putting people in jail) is arguing that self-imposed standards are a bad thing! Perhaps if the car companies had not constantly screwed consumers, we wouldn’t need government regulation of cars. And, indeed, there are other voluntary organizations that provide standards. For example: movie ratings. They are not government imposed. Yet, everyone knows that PG-rated movies are lame, and they only start getting interesting at R. So, this is hardly the “Exact equivalent” (a contradiction in terms).

But, I think we do agree that the unaccredited schools are at the bottom. I don’t see what the problem is with this. If these students experimented with their lives by not succeeded in a conventional fashion, they can experiment with law schools.

Larry, at 8:20 am EDT on May 5, 2007

“There is no “total protection” in tenure. Sadly, too few people know this.”

That’s the theory alright. But as the Churchill fiasco demonstrates, it is, in practice, almost impossible to get rid of incompetent and fraudulent tenured faculty. And even if one can, it’s going to cost hundreds of thousands of dollars and years of intense labor and litigation.

JBM, at 5:50 pm EDT on May 5, 2007

Car regulation

Larry, I can think of safety and fuel economy regulations cars must meet. They must meet pollution control requirements, too. Nor can companies misrepresent their products.

But, I can’t think of any law which forbids a car company from building a piece of crap. That is what they were doing in the 1970’s, when they built the Plymouth Volare, the Chevy Chevette, and the Ford Fairmont. The government didn’t force them to improve their products; if anything, protective tariffs reduced their need to do so. It was the loss of their market share to more reliable Japanese cars which forced the American car makers to build better cars.

Unfortunately, the American consumer cannot import high quality, more cost-effective lawyers. The legal guild has monopoly power the U.S. automotive industry can only dream of. If you think the car owner has been screwed by the automobile companies in the past, imagine the screwing he would get if the Congress and state legislatures had as many automobile executives as they have lawyers.

Jack Olson, at 6:00 pm EDT on May 5, 2007

legal regulation

Mr. Olson, Lawyers are regulated by many regulations, canons of ethics, and statutes. For example, here is New York CPR. http://www.law.cornell.edu/ethics/ny/code/ Moreover, failing to adequately serve clients is grounds for disbarment in all 50 states.

Larry, at 9:45 pm EDT on May 5, 2007

Larry, you miss most points about everything

Jack’s comment is that the source of lawyer regulation comes from their peers only, they do not allow any outsiders to pass judgment on them.

Nor, do they allow competition from other countries. And, with the ABA in charge, they do not compete within the US either. There is no quality required of lawyers.

I suggest you go to youtube and watch the rerun of Alberto Gonzales non-performance before Congress to see if you can get the picture. And, he is your top lawyer.

Hate to think what is going on in the bowls of the profession.

Suggest you take a rest from commenting, you dig holes where only fools would care to go.

Quizzical, at 11:15 am EDT on May 6, 2007

Quizzical — that simply isn’t true (with cites)

Quizzical, That simply isn’t true. Legislatures are free to regulate lawyers. For example, the The Sarbanes-Oxley Act of 2002 includes many provisions that regulate the conduct of lawyers. This is a federal statute. The most common example of state statutes regulating lawyers is the applicability of state statutes of limitation to claims of professional malpractice. Taxes are imposed on the practice of law (e.g. C.T. Stat. 51-81b); statutes require the deposit of funds into “IOLTA” accounts (which was upheld by the Supreme Court in Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) – Brown describes these statutory programs in detail).

It was purely a legislative creation. The disciplinary committees of various bars exist in various forms (such as committees of the state court, administrative agencies, or some hybrid involving a bar association.) Since lawyers generally put a lot of thought into their own regulations, legislatures are usually seem fit to leave them to their own devices and avoid a constitutional dispute between the legislature’s ability to regulate commercial transactions and courts’ ability to regulate practice before them.

Yes, it is true that states require that lawyers, doctors, engineers, accountants, and just about everyone licensed to perform services be licensed in that state. If you are arguing that states should allow, foreign countries to determine the level of service for professions in a state, you are free to, but let’s be clear on what you are arguing. I, for one, would rather have states retain some control over the level of professional practice in a given state, but I realize that some may differ.

Larry, at 7:25 pm EDT on May 6, 2007

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