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Not with regard to racial preferences, but because the ABA has heavy-handedly sought to require librarians, writing instructors, and clinical faculty be granted tenure or tenure-like protections. I can certainly see the case for law schools choosing to give these faculty members tenure (assuming tenure is a good idea to begin with, which I'm not sure is true), but I don't see any reason why the ABA should be requiring every law school in the country to do so. Indeed, the real reason is likely (a) heavy lobbying from groups representing librarians, writing instructors, and clinical faculty; and (b) the ABA's general indifference to the costs it imposes on legal education. Actually, from the ABA's perspective, the more legal education costs, the better, because that way the cost of law school serves as a greater barrier to entry. There's no reason the Department of Education, which is deciding whether to continue using the ABA as the accrediting body for law schools for federal purposes, should endorse the ABA's rules. For that matter, there is no reason the ABA should be mandating how many classes are taught by full-time faculty as opposed to adjuncts, nor restricting the number of hours faculty may be required to teach.

Thanks to John Rosenberg for the pointer.

UPDATE: Check out related posts at the Truth on the Market blog by Geoff Manne and Josh Wright. And here is the memorandum by the American Law Deans Association that kicked off the controversy.

SLS 1L:
Amen, David. But this is nothing new. The current rules, which impose strict limits on the flow of money out of the law school, require the law school to have exclusive facilities (this one's technically a "should," not a "must," but the way it's enforced it's effectively a mandate), demand that the law library be under the control of the law school dean rather than a central university library body, etc. are not remotely reasonably vital to the provision of an adequate legal education. The purpose is transparently to raise the cost of legal education.
4.22.2006 5:59pm
Henry Schaffer (mail):

there is no reason the ABA should be mandating how many classes are taught by full-time faculty as opposed to adjuncts,

I think that many (most/all?) of the "regional accrediting boards" are concerned with this point in undergraduate education. The reasons I've heard justifying this is the idea that full-time long term faculty are likely to provide a more integrated education to the students, and hence provide a better experience.

In my department, the faculty have worked for many years to coordinate courses so that the overall result has been good coverage of our entire field, with topics covered in a reasonable sequence, ...
4.22.2006 6:02pm
Cornellian (mail):
Although I don't think tenure is a good idea for librarians etc., I think "mandate" overstates it. The ABA doesn't mandate anything. It's the states (and not all of them) that mandate compliance with ABA accreditation standards, not the ABA itself. If no state used ABA accreditation, no law school would care what the ABA thought about legal education.
4.22.2006 6:32pm
anon) (mail):
Let's face it, the real "barriers to entry" are the fact that most graduates of real schools won't hire someone from a new school. Requiring that schools take libraries and clinics seriously ensure that, at the very least, the losers that go to new fourth tier schools might have practical skills (that can aid in representing individuals) even if they are absolutely useless to BIGLAW.
4.22.2006 6:42pm
okozark (mail):
David, I am certain the heavy-handed lobbying of the writing instructor's union has forced the ABA's hand once again. The injustice of it all! Will tenured professors ever again be in such dire straits?
4.22.2006 8:03pm
byomtov (mail):
Are barriers to entry into the legal profession really a problem? My impression is that we have plenty of lawyers, that those near the bottom of the income scale really don't make very much, and that a non-trivial number of lawyers abandon the profession for financial reasons.

Would we see all that if the ABA were succeeding in some nefarious plot to restrict the number of lawyers?
4.22.2006 8:42pm
Bruce Hayden (mail) (www):
As I have said before, I had extremely good luck with adjunct profs in law school as opposed to full time. Many of them were much more expert in their fields than the full time profs ever could be, because that is where they had practiced for 20-30 years. And they were there to teach, and not to play games, as some full time faculty did.

The problem was that the adjuncts taught what the practice of law actually entailed, and not some nice theory about what it should be, but isn't. It is this idea that the Academy not get its hands dirty with the actual practice of law that is really the problem. They are throwing thousands of new lawyers on the streets every year who have no idea of the actual practice of law, and one reason is that the full time faculty often don't either. They often went from law school themselves, to a clerkship or two, to academia, where they started teaching the next crop of lawyers.

So, I had a 30 year trial lawyer teaching about pleadings and discovery in Civil Procedure, and a sitting District Court judge with a couple of decades on the bench teach about criminal procedure. An actual live patent attorney with probably a thousand patents under his belt taught me about patent practice. These were some of my adjuncts.

On the other side, I had a contracts prof who graded us on parotting back case cites that were only marginally relevant, so barely relevant that they might even have resulted in sanctions if actually included in briefs to courts. Needless to say, he was fully tenured.
4.22.2006 11:37pm
picpoule:
Anything that improves legal education should be welcomed. As a student at Loyola Law School in LA 20 years ago, I thought (and still think) my professors were god-awful. Every single one of them. I've taught writing as an adjunct at a law school and did my best not to hide the ball and teach what I know in a direct manner. Writing is a very important skill for a lawyer and should be compensated accordingly for those who can impart the skills successfully. I doubt the ABA can help improve legal education, though.
4.23.2006 12:16am
jimbob (mail):
The writing instructor lobby? Seriously?
4.23.2006 12:22am
eageryoungmind (mail):
this is a bit off topic, but i was hoping to ask if somebody could explain how a legal challenge to the ABA accreditation standards that mandated that law schools show "concrete results" in their attempt to increase ethnic diversity (mentioned in a blog-post a bit back) would be legally challenged.

Is the ABA a private entity or a state (or federal) actor? from what angle would the provision be attacked...would you have to get to the ABA through the department of education? And once you get either party in court, what are the best constitutional arguments? Just the same arguments from grutter, but with different justices?

I'm posting this question here rather than in the previous posts regarding the ethnic diversity provisions, because i doubt anybody is still looking at those, and so a response is less likely. thanks in advance to anyone who can help me out here.
4.23.2006 12:34am
Lev:

Writing is a very important skill for a lawyer and should be compensated accordingly for those who can impart the skills successfully.


A job for high school and college English instructors.
4.23.2006 12:42am
EL (mail):
Can anyone explain to me WHY the ABA controls so many aspects of our profession (specially law school) when only 1/3 of the attorney's are members! Who granted them all this power? I cannot stand then!
4.23.2006 1:22am
Cornellian (mail):

The problem was that the adjuncts taught what the practice of law actually entailed, and not some nice theory about what it should be, but isn't. It is this idea that the Academy not get its hands dirty with the actual practice of law that is really the problem. They are throwing thousands of new lawyers on the streets every year who have no idea of the actual practice of law, and one reason is that the full time faculty often don't either. They often went from law school themselves, to a clerkship or two, to academia, where they started teaching the next crop of lawyers.


I had, in a way, the opposite experience. Although the practitioners undoubtedly knew the actual practice of their field better than the regular faculty (on average) they were also (again on average) much less capable of teaching what they knew.
4.23.2006 1:32am
Frank Drackmann (mail):
How does the ABA hope to be taken seriously with that rediculous Red White and Blue basketball, and 3 point shot?
4.23.2006 9:52am
Federal Dog:
"A job for high school and college English instructors."


Do you think they have the necessary training and skills in legal argumentation? Legal writing is quite specific writing, after all.


I agree with the poster above: Once past my first year in law school, I always worked with practitioners. I had to unlearn trash passed off as legal training during my first summer out, and I did not appreciate it. Given the showing in the FAIR case, I wonder just how competent fulltime law school instructors are.
4.23.2006 11:18am
Baffled:
Why is everyone obsessed with the lawyering in the FAIR case? They won at the third circuit -- no small feat. The lawyer who argued at oral arguments had won his prior Supreme Court case 9-0. If the vote in the Supreme Court is supposed to be indicative of quality of lawyering, how did he go from amazing to god awful?

And since everyone is throwing out their anecdotal evidence, the practioners at my school (top-10) we're horrible (on average). They didn't have the grasp on the big picture like my professors did, and as another poster said, they (on average) were not good at conveying what they did know.
4.24.2006 1:10am
Observer (mail):
I've been practicing law for over 25 years and if it were up to me, I'd bring back the practice of reading for the law. Let kids skip law school and go to work for a law firm for a few years and read law under a practicing attorney, and then take the bar exam. I can safely predict, that if you compared kids with comparable LSATS who go to law school or read law, they would have the same likelihood of passing the bar and of being decent lawyers.
4.24.2006 11:15am
Houston Lawyer:
I remember a legal research and writing class from my first year in law school. I don't recall learning how to write in that class.

The people who taught me to write were the partners I worked for at my first law firm. They were cruel but fair and taught me a lot.

I don't recall speaking to any of the library staff during my time in law school.
4.24.2006 11:22am
Andrew T. Solomon (mail):
Houston Lawyer said:
I remember a legal research and writing class from my first year in law school. I don't recall learning how to write in that class.

The people who taught me to write were the partners I worked for at my first law firm. They were cruel but fair and taught me a lot.

I don't recall speaking to any of the library staff during my time in law school.

*************

I had exactly the same experience described by the Houston Lawyer, but that was 15 years ago. Fortunately, the training received by many students in today's law schools is quite different.

After the McCrate Report, in an effort to make legal education less theoretical and more practical, many law schools began incorporating more practice-oriented courses. Many schools invested a significant amount of money hiring and retaining full-time clinical professors, often on the tenure-track, to teach these courses. At many schools, these professors now help to provide a better balanced education to today's law students. Today's law students study the theoretical underpinnings of the law, but that education is supplemented with practical courses that allow today's students to function as practicing attorneys upon graduation.

ALDA now wants to "roll back" the employment conditions and safeguards for these clinical and writing professors. This would, undoubtedly, lower the quality of the education received by today's law students, especially in important practical courses. It would, of course, save money, but that savings would be at the expense of properly educating today's law students.
4.24.2006 1:33pm
Whatever:

I've been practicing law for over 25 years and if it were up to me, I'd bring back the practice of reading for the law. Let kids skip law school and go to work for a law firm for a few years and read law under a practicing attorney, and then take the bar exam. I can safely predict, that if you compared kids with comparable LSATS who go to law school or read law, they would have the same likelihood of passing the bar and of being decent lawyers.



You can do it in Vermont. I believe you have to clerk for three years, then are elegible to sit for the bar. There's only a handful of lawyers who have done it though, if I recall....
4.25.2006 3:23pm
Lysander (mail) (www):
I'm not sure what the ABA accreditation (both for schools and for lawyers) if it's something other than making the schools and those with "ABA-approved JDs" a special class. I'm a rare breed - a US Citizen with a foreign law degree. When I moved back to the US, having my common-law LL.B. "domesticated" was a nigh impossible task that, despite my being licensed, still isn't complete. No matter that I do have a LL.M. from an accredited school; most states take the approach that not having the ABA-approved version of the LL.B. (for that is what the JD is) is the mark of doom.
4.25.2006 8:38pm