Category Archives: The future of American law school

ABA does the right thing in keeping tenure standard for law schools

At a weekend meeting the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted (pay wall) to retain tenure as a condition of becoming an ABA accredited law school. In light of an earlier call by a majority of the Council’s members to change that requirement, this is a significant victory for academic freedom and quality at the nation’s most important law schools.

The decision is being justly celebrated, as well, by the American Association of University Professors (AAUP), which helped create the modern interlocking institutions of academic freedom, tenure and shared governance. The AAUP commented on the proposed cutback to tenure and helped law faculty weigh in in defense of tenure.

While some law school critics argue that requirements like tenure are a barrier to affordable legal education, in fact, it is tenure that insures that law students get what they pay, sometimes dearly, for: quality faculty who must demonstrate to their peers over several years their ability to teach, engage in relevant scholarly research and give back to their universities and surrounding communities through various forms of service. In several states, of course, California included, it is possible for students to pick non-ABA law schools and still sit for the bar, thus offering lower cost alternatives.

It is an important sign as well that the ABA leadership listened to the many faculty from law school academia who spoke up in defense of tenure. A culture gap has long existed between practicing lawyers, who dominate the ABA, and the legal academy. Hopefully with this battle behind us, new constructive efforts to bridge that gap can be made. Our best and best known legal scholars should make a point of being available on a regular basis to the bar for discussion of their work.

Legal academics can listen and learn from the practicing bar as well. In one of my fields, business law, it is almost not possible to tackle complex research problems without being close to the experience of the practicing bar but no doubt even there we could do a better job.

State bars, together with law school deans, could take the lead in developing such relationships. It can potentially benefit all constituencies that make up the broader legal community. As an example, I recently wrote an article on insider trading and the startup world of Silicon Valley. It was first written for a California state bar audience and then was seen by a leading corporate law scholar and I revised it for inclusion in an academic collection that scholar edited. Both the academic world and the practice world benefited, presumably, as did I by working through the issues first for that real world audience and then for a more academic audience.

AAUP national elections: why I am voting to re-elect the “Organizing for Change” slate

National elections for the American Association of University Professors are now underway. An incumbent slate called Organizing for Change is being challenged by the Unity slate which is led by AAUP figures who used to be in power. I am voting to re-elect the Organizing for Change slate and I think if you are an AAUP member in good standing you should do the same.

The reason I support OFC is straightforward. The challenges facing faculty across all sectors of higher education are dramatic and are taking on a momentum that we have probably never experienced in this country. We need a national advocacy group that wants to respond to those challenges aggressively and with creativity. Most importantly we need the AAUP to have real meaning and impact on the ground where it really counts. I think that is the basic goal of OFC and it represents an important and relevant shift in the orientation of the organization. I think for the first time in many years (I have been an AAUP member since I joined my faculty as a junior professor in 1999) the AAUP feels like a real presence not just in Washington but on our campuses where it counts.

Part of what OFC is trying to do is strengthen the collective bargaining arm of the organization. That likely creates some tension in the AAUP because it means a shift in culture and even resources. There is a suggestion by some that this means giving less attention to academic freedom, the issue for which AAUP is best known historically. In reality these two efforts are two sides of the same coin.

This does not mean that collective bargaining is always the right approach or even necessary but it must be a viable part of what we do if we take academic freedom seriously. Why? Because the greatest challenge we face in academia today, whether at the junior college level, or at Berkeley and Harvard, is the change in organizational structure of the university.

A permanent new administrative, if not bureaucratic, caste is taking hold of managerial authority in the universities. Instead of an experienced faculty member spending a few years as a dean or even provost or president and then returning to the teaching faculty, today individuals who take on  those positions have almost uniformly left teaching and research behind forever.

Inevitably, these individuals develop a skill set and outlook that matches that of the corporate executives who now control most university boards of trustees. In turn the trustees and administration increasingly treat faculty not as partners in the governance of an academic institution but as employees of a giant corporation. And indeed as government funding for higher education has receded corporate and foundation spending has ramped up making it appear as if we do work for corporations. Corporate executives, of course, feel more comfortable with deans, provosts and presidents who can talk their language and that often means reassuring the trustees that they can get their faculty “under control.” That has led to a wide range of conflicts with faculty as well as to developments like the widespread use of contingent faculty and the waning of the tenure track.

This turn of events is not healthy for the fundamental purpose of our system of higher education: to generate knowledge in order to help solve social problems while preparing young people to join our society prepared to confront those same problems. Employees or, worse, automatons are not good at original thinking. Control and creativity rarely go well together.

In such a situation the AAUP needs to be a living, breathing organization that has a meaningful presence on campus. In my experience with the OFC leadership they have been successful at helping build that kind of presence. I teach at a relatively small and private institution. While collective bargaining might be helpful there it is not a likely outcome given the legal and political constraints we face. But there is a role for our chapter to raise that issue and even pursue it if our colleagues wish to do so. And a “union outlook” on issues is not a bad way to motivate fellow faculty and stir up discussion of important issues even shy of actual bargaining.

At a minimum AAUP chapters can play an advocacy role that makes issues clear and signals to the administration the limits of their ability to manage the institution without robust shared governance. Right now on our campus it is the only forum for just faculty members to assemble and discuss important issues independently of the administration. And the OFC leadership has been very helpful to me and my fellow AAUP chapter members in understanding how to play a constructive role in an ongoing governance crisis on the campus. They have been there when it counted several times in the last two years.

So, in sum, I think OFC has breathed new life into the AAUP. It does not have all the answers and I have a great deal of respect for the traditions of the organization. I hope that the Unity slate will continue to be an active force but for now I think OFC deserves more time to help  move us ahead as we confront the significant changes impacting higher education today.

 

Before you let the ABA ruin your law school, listen to this talk by Dean Harry Arthurs

As the pressure on legal education and new JD’s from the fallout of the worst financial crisis in the modern era continues, there are efforts underway to transform the nature of American legal education. As I have suggested elsewhere in some depth, the goal of this effort is the death of the autonomous law school as an academic institution in favor of what can, at best, be referred to as “training.”

Thus, the recent ABA Task Force Report on the Future Legal Education calls for a substantial weakening of tenure, and by implication, academic freedom. (Notably, the words academic freedom do not appear in the Report, as if the members of the Task Force are unaware of its centrality to the success of the law school. There were efforts to bring this problem to their attention, both by me and the AAUP.)

Now a prominent former dean and university president, Harry Arthurs, has laid out a critique of the effort to enforce a new pedagogical regime on the law school environment. You can watch Dean Arthurs present his views here at a recent conference on the future of law school hosted by the University of Alberta and read the paper upon which the talk is based here.

As he makes clear the fundamental goal of the law school, which is firmly situated in an academic environment, is to pursue knowledge. It is not a substitute for “training” lawyers whether under the guise of producing “practice ready” graduates or steeping students in so-called “experiential learning.”

While it makes sense to have a certain amount of hands-on activity available for students in law school (I, for example, use mock negotiations and drafting a part of my securities law and corporate finance classes) it is impossible to replicate in the law school setting the process of skills building needed in daily practice of law.

Law schools, fundamentally “knowledge communities” as explained by Dean Arthurs, are not cut out for this task and should not be forced cookie cutter-like into a mold shaped by external market forces. The tension this effort creates is brought home sharply in the final moments of the talk when Dean Arthurs has an interesting exchange with an individual who it appears is the new dean of another Canadian law school.

In Dean Arthur’s words, “law schools should play a leading role in the creation and transformation of legal knowledge, legal practice, and the legal system — a role that requires them to provide their students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers.”

Although Dean Arthurs is Canadian and was dean of Osgoode Hall, one of Canada’s leading law schools, and later president of York University where Osgoode resides, it is clear that the pressure from Canadian law societies on law schools is identical to the pressure being exerted by the ABA to cut the cost of law school at the expense of its academic mission.

It becomes equally clear after listening to this elegant and thoughtful presentation how utterly incoherent the reform agenda is. Thus, his views, echoed in part recently by the faculty at Yale Law School, are well worth considering.

 

More evidence that lawyers hate economics – the myth of “financial exigency” at Albany Law School

I teach corporate finance, business law and securities regulation – in a law school. And that means I have as students each year many folks who would rather, I suppose understandably, be debating Roe v. Wade and Brown v. Board of Education instead of listening to me explain, as I did briefly last week, how synthetic collateralized debt obligations work. Of course, those synthetic CDO’s are far more important to what is going on in legal education and the legal job market today than almost any major Supreme Court case of the last 50 years.

Why? Because it was the creation of ever more complex and, as it turns out, fictitious forms of capital that led, in part, to the credit bubble we experienced in the wake of the dot com bubble. Now we are experiencing in law schools and the legal job market the impact of the collapse of that bubble. The downturn in jobs and the consequential downturn in applications to law schools will eventually bottom out, and it may be doing so already. And, slowly it will turn upward again. This will happen, unfortunately, too slowly for many recent JD’s who got caught in the updraft and applied to law school thinking the credit bubble was a permanent expansion of the economy and now have been caught in the downdraft.

But the big risk now is that many law schools will be tempted to make the same mistake some made during the bubble phase – rapid expansion of spending on staff and clinics then (as opposed to tenure track hiring, which has slowed overall in higher education dramatically in recent years) – but now in reverse, unwinding that over-spending by over-cutting including threatening layoffs of tenure track faculty.

The most recent example is occurring at Albany Law School, a very old (by US standards) independent law school, with a long tradition of serving upstate New York (and not far from where New York State’s very first law school was established in the Hudson Valley.)

From reports on the web it appears Albany Law School, facing the same decline in applications and enrollment that almost every other law school in the country outside of the world of Harvard and Yale and Stanford and Chicago are facing, is threatening its tenure track faculty with layoffs. Yet Albany is committed to academic freedom and derives its definition from the AAUP’s 1940 Statement on Academic Freedom which more than 200 colleges and universities support.

The AAUP has developed a set of derivative procedural standards that help guide universities in protecting academic freedom. Among these is a commitment that faculty not be threatened with dismissal absent cause or what is known as “financial exigency.” This has led the law school critics, in their typically opportunistic manner, to declare that indeed ALS is facing such a financial exigency.

Apparently, these critics are no more familiar with the basics of accounting than they are with those of finance.

The AAUP’s guidelines define a “financial exigency” as “imminent financial crisis which threatens the survival of the institution as a whole.”

(See AAUP letter to Albany Law School here. The AAUP National President has also issued a strong defense of tenure’s place in the accreditation of the American law school to the ABA here.)

Yet a cursory review of just the publicly available information suffices to demonstrate that this situation is nowhere near reaching that standard.

In 2010-2011 its revenues exceeded expenses by $10 million and while this declined to a $3 million positive margin in 2011-12 it is hardly a suggestion the School is no longer a “going concern.”  And Albany has an endowment of $47 million, far larger than most law schools (granted it does not have a parent institution it might turn to so it has, prudently it would appear, built up an endowment for precisely the situation it now faces.) Some $43 million of its assets on hand are unrestricted and it has most of the endowment in liquid securities.

(See financial data here and here.)

Of course, turning to the seed corn in a crisis is a challenge but one has to call into question any conclusion that suggests the institution is threatened with closing its doors unless it starts laying off faculty. This suggests the Dean and Board of Trustees of the School may be attempting to engineer a reform agenda while using the temporary financial problems of all law schools as an excuse.

Yes, Virginia, judges do read those law reviews, after all

Much of the attack on law schools over the last few years has focused on the alleged irrelevance of legal scholarship. At times the level of rhetoric has been so intense one feels as if the “anti-intellectualism in American life” so eloquently described fifty years ago by Richard Hofstadter has once again raised its ugly head. Things are not helped when prominent jurists like Chief Justice Roberts pile on.

Research is a tough road, good questions are hard to specify and methodology can be challenging to develop. It is hard enough when one is dealing with the physical world so imagine trying to fashion a reliable scientific method for the constantly shifting social world.

In response to this challenge, legal academia has over the last few decades gone down two separate roads, one that can largely be characterized as quantitative and the other as qualitative. Both have their advantages and limitations.

Fortunately, legal academia enjoys one distinct advantage: peer review is largely absent and so the heavy reliance on “prestige” journals has not stifled innovation. Law school publishing is in many ways an analog precursor of the open source world. Much work that is not all that good gets published but the very best can rise to the top. And there are often nuggets of value even in work that is not terribly important – and that’s where databases like Lexis become invaluable.

Arguably, law and social science are ahead of the physical sciences in this game having supported the creation of new online sites like the Social Science Research Network. Paul Krugman, a Nobel prize winning economist, weighed in recently in favor of the online world.

Of course, many deride the lack of peer review as a serious problem and point to the demanding review process of the world of physical science. But it turns out that the way good work gets done in legal academia is not far from what happens in the physical or other social sciences (I speak with some exposure to both arenas as I am married to a physical scientist, am cross trained in political science and have been working closely with an economist for several years).

And it turns out that within the world of physical science there is a concern, expressed most recently by this year’s Nobel Prize winner in Medicine, cell biologist Randy Schekman, that the traditional system has rewarded too highly publication in certain “luxury” journals in a manner that, in today’s online world, stifles innovative work.

Michael Jensen, a founder and Chairman of SSRN, tells me he “share[s] Schekman’s views completely….I am committed to changing this crazy system that we have backed into.”

And SSRN Managing Director Bernard Black of Northwestern Law School and the Kellogg School of Management emailed me the following comment:

“SSRN doesn’t solve the problem, but it helps. In areas where posting working papers in SSRN is the norm, a near-final working paper provides a respectable substitute. I’m also involved right now in launching a new peer-reviewed Journal of Law, Finance, and Accounting, where the business model contemplates that submitted papers will remain available on SSRN from submission through publication, and will automatically be replaced with the true final version 6 months after publication. Unfortunately, there are areas – including health care and medicine – where the idea of publishing a ‘working paper’ online remains verboten.”

The so-called “luxury” hard science journals (Schekman points to Cell, Science and Nature, in particular) are loath to have work they want to publish subject to any criticism prior to publication that an open system like SSRN might entail. This is the kind of problem Schekman wants to take on because of the fear that the current system stifles innovative thinking in the hard sciences.

(This only underscores the inexplicable and reactionary effort underway in Kansas to stifle academic freedom through the suppression of the use of online media as explained by legal scholar and economist Bill Black here, here and here and as explored by me here. Update: There is some indication now that the KU Regents may back down.)

In other words, just as the law school critics have opened up two barrels on allegedly weak academic work in the world of law schools, that world has already incorporated a form of review akin to so-called “hard” science, while the world of “hard” science is developing models that take advantage of what Schekman calls the “new breed of open-access journals that are free for anybody to read.”

While it is conceivable that a law professor may write something and send it out for possible publication without any input from his or her peers, that is often the exception and it certainly rarely happens with very good work that ends up in the most widely followed journals. Instead, papers often go from proposal or rough draft to working draft, to a seminar paper or workshop presentation, then on to conference(s) to posting online for more comments and then, finally, perhaps, submitted for publication in a law review or formally peer reviewed journals. The result is, in fact, a process not dissimilar from that of traditional peer review in other disciplines.

Of course the thoroughness of the process that legal scholars rely on is widely ignored by the law school critics who blithely assume they can better understand the academic work process than those who specialize in it. While, as I explain below, they typically concentrate their attacks on the work of conceptual or qualitative scholars – naively assuming they can more easily pick such work apart – they also have recently attempted to undermine quantitative work as well. The results have not been pretty. In the case of their attacks on the JD earnings premium study by Professors Simkovic and McIntyre the result was downright embarrassing.

As Professor Leiter explained yesterday the critics’ leading advocate, a tenured law professor himself, may have finally jumped the shark when he openly admitted at the conclusion of his specious attack on a fellow academic that his own credentials “don’t actually have much if anything to do with either carrying out serious academic work or training people to practice law.”

One of the arguments of the critics, of course, is that it is the qualitative or conceptual work that is weakest and least relevant to the actual practice of law.  Recently, the critics (who move like a swarm of locusts, first alighting on one target, then another) have made the object of their screeching concern an article by a rising star in legal academia, Professor Nancy Leong, of the University of Denver. Professor Leong visited at UCLA this Fall term even though she has yet to be tenured at Denver (a strong sign of the wider academy’s interest in her work). For those catching up, Brian Leiter summarizes the core of the atrocious attack on her here.

Much, even most, of the criticism of her work, and, sadly, of her personally, has gone way beyond what is appropriate or even civil, apparently because the critics have decided one of her (several) major articles, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (64 Fla. L. Rev. 305) (and available on SSRN here and first “published” as a University of Denver working paper), should be made a kind of poster child for everything that is wrong about legal scholarship. (One bright bulb in the locust crowd actually wrote about Professor Leong: “She is the perfect poster child for what is wrong with legal education in this country.”) A central claim of the critics is that legal scholarship is irrelevant to the actual practice of law and that law professors are featherbedding bums who fit the old canard, “those who can’t, teach.”

How timely, then, it is that a federal circuit court judge recently placed the “Open Road” article at the heart of his opinion in United States v. Mubdi, 691 F. 3d 334 (CA4 2012).

In his partial concurrence with the majority, Judge Davis opens his opinion with a quote from “Open Road” and then in the body of his opinion again quotes extensively from the piece, calling it a “cogent summary of the evolved legal regime” with respect to racial profiling and traffic stops. And then once more relies on Professor Leong for her “correct” observation that “close calls always seem to go to law enforcement.”

Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion.

Granted, Judge Davis himself spent three years as a law professor and so may be more open to the potential value of legal scholarship than those members of the judiciary with more limited backgrounds. And granted, as this is only one example, law faculty might be able to think more carefully about ways to assist the bar and judiciary think through complex social and legal problems with good scholarship.

But it has to be noted that the very article used to ridicule an entire academic discipline for its allegedly weak connection to live legal issues turns out to be at the heart of a federal appellate court opinion about a very live legal issue, indeed.

I recall the poignant moment in a large class of mine a few years ago when one of my students approached me after class to explain why she was late – despite being well within the speed limit, she had been pulled over by a police officer while on her way to campus for a “DWB” infraction – “driving while black.”

No wonder, then, that Judge Davis quotes Professor Leong when she concludes:

“Thus, even an officer with no actual purpose other than to harass and annoy may—according to the Supreme Court—use a traffic stop as an entirely constitutional starting point for such actions, as long as an objectively reasonable evaluation would conclude that the officer had probable cause to believe that a traffic violation occurred at the time she made the stop.”

It is, in fact, hard to find a more compelling and relevant piece of scholarship than this piece by Professor Leong and yet this eludes practically the entire corpus of law school critics. When one sees such a radical disconnect in the locusts’ argument, it has to make one wonder about the integrity and common sense of the critics themselves.

Simkovic schools Steven Harper on basics of valuation

You would think a former BigLaw partner would know better.

Brian Leiter’s Law School Reports.

Mike Simkovic explains basic statistical concepts to law school critics

Brian Leiter’s Law School Reports.

It probably won’t convince the rigid ideologues to recognize the world is not flat but worth a shot.

Revisiting Brian Tamanaha’s “Failing Law Schools”

When I first read Brian Tamanaha’s Failing Law Schools (Chicago 2012) I thought it contained some mildly interesting anecdotes about the troubled economy’s impact on higher education thrown together with some decade old memories Tamanaha had of his first law school, the then-languishing St. John’s University in New York. But the book hardly seemed to justify the attention it was garnering.

It became clear to me, though, that a mini-industry was being created – by class action lawyers, naive young law school graduates and a handful of opportunistic legal education reformers – to push Tamanaha’s agenda of weakening tenure and attacking the important role that the autonomous law school has in the university environment. I realized then the book merited closer attention. I wrote an essay that examined the logic of the Tamanaha argument, placing it in the context of the wider debate about the rule of law itself, a subject that had originally established Tamanaha’s reputation. It is almost certainly the case that that prior reputation is a significant factor in the weight that Tamanaha’s decision to join the anti-law school campaign carries.

Unfortunately, my closer read of his book led to my conclusion that Tamanaha had not done the necessary “careful econometric analysis” to assess properly what had caused the volatility in the legal market but instead relied on “broad-brush statistical material and anecdotal information.” This approach did not sustain Tamanaha’s conclusion that law schools were responsible for the bubble in enrollment that followed the economic downturn of the mid-2000s.

Yet, the inevitable bursting of that bubble led the anti-law school mini-industry to argue, with a straight face, that law schools are to blame for the impact on legal employment rather than the worst economic downturn the world has experienced since the 1930′s.

I had hoped to engage Tamanaha in first hand discussion about his book, but within a short time after my review was posted on SSRN he cancelled his long planned visit to our law school to discuss the book. In the meantime he traveled to the conservative Cato Institute, financed in part by the Koch Brothers, where he was celebrated as the “good cop” of law school reform (as opposed to the so-called “bad cop,” namely, another less well known law professor in the anti-law school camp whose demeanor is distinctly less temperate than the usual style of Tamanaha). Cato, of course, proudly attacks teacher tenure and higher education whenever it gets the chance.

It is fortunate, then, that two scholars who have done very careful empirical work on the value of earning a JD, Michael Simkovic of Seton Hall (Law) and Frank McIntyre of Rutgers (Business), have now turned their attention (here) to Tamanaha’s book. It is not likely, of course, that Tamanaha will be willing to engage in serious debate with these authors. Their original work on the positive net present value of a JD (explained here) across the income spectrum of law degree holders caused Tamanaha to engage in a series of vituperative and arguably irrational attacks on their solidly presented data. The original paper, “The Economic Value of a Law Degree,” can be found here. Simkovic recently presented the paper at Berkeley Law and a video of his talk can be seen here. I summarized the paper’s key findings here.

While the Simkovic/McIntyre research largely closes the debate about the value of a JD, it is nonetheless useful to have them weigh in on the original manifesto for the anti-law school campaign. The abstract for Simkivic and McIntyre’s review reads:

The review focuses on problems with empirical claims in “Failing Law Schools” regarding outcomes for law graduates and also regarding law faculty compensation. The review also discusses Professor Tamanaha’s proposals for reform of legal education in light of economic theory and the empirical economics literature, and finds reasons to doubt that Tamanaha’s proposed reforms will have the effects he predicts.

I am pleased to see that their review confirms my original argument about the weak empirical basis for Tamanaha’s book. They note many of the very basic mistakes that Tamanaha made, including:

  • using the earnings of very recent JD graduates to drive a conclusion that the JD is not worth it although this greatly understates lifetime earnings for JD holders
  • misstating the conclusions of his own sources about the increase in JD holders salaries throughout their careers
  • using inconsistent assumptions about age, experience, work status and the definition of earnings to sustain his claim that JD holders do earn enough to justify the expense of pursuing the degree (the result is Tamanaha compares top earning BA holders with the lowest cohort of JD holders)
  • citing one key study to support some of his claims but ignoring the same study when it contradicts his claims (e.g., when the study concludes that debt loads of JD earners are sustainable and do not interfere with important life choices like when to purchase of a home or start a family)
  • overstating how well law professors are compensated relative to lawyers (in fact, across the distribution law professors earn less than practicing lawyers, undermining the patently absurd and self-serving claim by some in the anti-law school movement that law professors are “rich”)

One of the more important aspects of Tamanaha’s book – overlooked by some – is his call for a weakening of tenure standards. He has now, sadly, been joined in this call by some within the ABA which accredits law schools. Thus, it is welcome that Simkovic and McIntyre take the time to point out that tenure has an inherent value to the American law school including a basic economic rationale that reinforces its importance. It is simply not the case that ending tenure has any rational link to solving the problems of supply and demand for lawyers in the wider economy.

The authors conclude by once more, calmly, calling for constructive reform based on good data. That data makes it clear the JD has real value (a present value of $350,000 at the low end and more than a million dollars at the high end).  Sadly, many in the anti-law school camp have been unwilling to respond in kind. Thankfully, reflected in the reception accorded Michael Simkovic at Berkeley recently, most law schools – deans, faculty and alums together – remain committed to responsible reforms that are consistent with the core principles of academic freedom and tenure that have been central to the stunning and progressive success of the American university system.

An open letter to the Task Force on the Future of Legal Education of the ABA

To Whom It May Concern:
I only learned tonight about tomorrow’s public hearing in San Francisco so have not been able to ask for time to speak. However, I would like to share some questions for the Task Force’s consideration.
  1. I read the recent working paper and was surprised and concerned that the words “academic freedom” do not appear in the paper. Are we to conclude that academic freedom is not a principle to be an integral part of the law school of the future? Presumably not. But I would appreciate learning the Task Force’s views on this basic principle.
  2. An implication of the push for diversification of law schools is that the ABA should no longer require tenure as an accreditation standard. For a century or more tenure has been considered inextricably linked to the protection of academic freedom. If the Task Force believes that tenure should no longer be part of the standards, how does it believe academic freedom can be protected?
  3. In light of the concern that many legal academics have about the threat to tenure and academic freedom that is part and parcel of the program being pushed by the law school “reform” or “critics” movement does the Task Force believe that the law school’s place inside independent colleges and universities plays a critical role in the promotion of the rule of law?
Thank you for your consideration of these questions.
I have written a series of blog posts on “The Future of American Law School” and would be pleased to share them with individual members of the committee. They are collected on my personal web page here: http://stephen-diamond.com/?cat=221
Sincerely,
Stephen F. Diamond, JD, PhD
Associate Professor of Law
Santa Clara University School of Law

Profits of Doom – Updated

There are many ways to build a business in this country but one of the less savory is to dragoon potential customers into buying your product through fear and intimidation. The mafia used to excel at this. One day a bunch of young thugs would show up at some small shop in the neighborhood and either threaten physical harm or actually trash the premises. The next day a smooth talking older figure would show up and “suggest” that the store’s owner really could benefit from employing his “protection” services. The hook was in and the racket was on.

It took decades to eliminate this kind of strong arming from the American economy and in some places variations on this theme still occur. Hence the popularity this century of the Sopranos.

It’s a surprise, perhaps even a shock, then, to watch something similar rolling out inside the environment of the American law school. As only one example, an entity that calls itself “Law School Transparency” set up shop a while back with the alleged aim of providing free information to prospective law students about the cost of going to law school. The real aim seems to have been to discourage people from actually going to law school or at least to particular law schools. Their analysis suffered, as the recent Simkovic and McIntyre paper demonstrates, from a basic misunderstanding of the value of a JD.

When I first entered the debate about the future of the American law school I expressed the view that law school critics like LST had a basic problem grasping the nature of macroeconomics, particularly the longstanding role of economic cycles on the value of a JD. That view has also been demonstrated clearly in the Simkovic and McIntyre paper. What was surprising, though, was that LST and its friends, including a few anonymous former law students and a couple of law professors here and there, were not interested in a genuine discussion about these complex issues. Instead, they kept up a wall of denial and obfuscation which quickly turned to personal attack or attack on the particular institution that any of their opponents happened to come from.

Steven Davidoff picked up on this trend when he reviewed, favorably, the Simkovic and McIntyre results for The New York Times: Their “data [detailing the value of a JD to a majority of law school graduates] refutes some of the arguments made by those who say law school is a ‘scam.’ It is no surprise that this study would be attacked by many of the same people. After all, the law school scam industry has been bountiful for some, just like being a Kardashian.”

I began to suspect that there was another agenda at work. One possibility I suggested was that LST actually was operating like a startup business and it intended, god forbid, to make money from its efforts. Therefore, because of the obligation to build the business no matter what rational thoughts entered the heads of the young LST founders they would suppress them to support their business model. This was denied and not just denied but, in the case of LST ally Professor Deborah J. Merritt of Ohio State, called a “malicious” and “unfounded” claim that should have been censored by the moderators of Faculty Lounge where I suggested this possibility. Professor Merritt is partners with Kyle McEntee, the founder of LST, in another venture called Law School Cafe, which I am sure, she will contend, is as purely non-profit as the driven snow.

In fact, there was some basis for my suspicion about LST, first, because of the way the critics behaved in the face of any genuine effort to consider alternative explanations for the challenges facing law schools other than the assertion that law schools themselves bordered on being criminally fraudulent institutions; second, in the fact that LST was unable to provide the evidence that it had filed the document (a Form 990) required by the IRS for entities claiming non-profit status; and third, by the public statement by LST founder Kyle McEntee himself to the ABA last year that he was seeking $500,000 in angel funding.

And sure enough, now, LST itself has publicly stated it is starting a new “fee for service” product that extorts, I’m sorry, suggests to shop keepers, oops, Deans, that they might need the protection oh, sorry, “certification” by LST that a law school is meeting the requirements of ABA Standard 509 regarding disclosures to students about financial aid and employment outcomes. For an annual fee of $2,750.00, of course. If LST signs up 50-100 law schools that’s a nice little pile of cash coming in every year and perhaps even enough to attract the interest of that angel or VC that McEntee says he is on the lookout for. In fact, LST says it will lose money at this rate so they are, indeed, seeking funding from other sources.

After several years of the critics beating up on law schools (without substantial basis as the Simkovic and McIntyre paper and several court decisions demonstrate) and attempting to intimidate anyone who dares criticize LST (LST’s “research director” Derek Tokaz on the website he operates has called for me to be fired when I first called out the now clear business goals of LST) there may be a few vulnerable marks out there in the law school world tempted to fall for the LST gambit. Deans should give them a pass. Let’s keep the American law school clear of the unsavory business practices that once weighed so heavily on the wider economy.

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Update: With respect to the IRS filing, after various people including McEntee himself and Bernie Burk of UNC dismissed my concerns as unfounded, it appears that LST now admits they need to make such a filing. Their new Facebook page includes the following statement:

Company Overview

We are a nonprofit working on legal education reform, incorporated in the state of Georgia. Our staff and board are preparing to submit the necessary paperwork to the IRS to officially recognize LST as a 501(c)3, at which point all donations dating back to our date of incorporation in GA (Aug. 2012) will become tax deductible. Until then we encourage you to donate as we expand the organization.

McEntee confirms today on Faculty Lounge that they are filing the form required to get 501(c)3 status. That will allow their donors to deduct their contributions. It will also mean that LST must file an annual report referred to as a Form 990. Let’s hope LST takes the “T” for transparency in its title seriously and exercises its option to file a full 990 rather than the minimalist 990-N postcard.

Interestingly, on Faculty Lounge McEntee said LST was incorporated in 2009 yet now only those people who donated since August of 2012 will be able to claim a deduction. This is most likely because of their failure to make the 501(c)3 filing in a timely manner.

It would also be nice to know the names of all of their advisory board members and their precise relationship to the class action lawyers and law suits they have publicly backed against the same law schools they now hope to extract fees from.

With respect to the question of “angel funding,” LST founder McEntee told Faculty Lounge that he is now seeking something called an “angel donor,” which is a previously undetected form of funding species, especially one willing to “donate” a half million dollars. If McEntee were smart, he would tap into the very large “social venture” fund world where VC or angel type funding is readily available for ambitious non-profits.

Of course, as I have suggested here, LST and its founders – in their various efforts around the web – have behaved in a manner that goes beyond just being ambitious. The word predatory comes to mind. Apparently some law school deans have reacted to the latest moves of LST in the same fashion, as Brian Leiter explains here.