Sunday, August 4, 2013
Sections VII and VIII contain the key recommendations of the Task Force. Section VII is billed as "themes addressed to all parties," of which there are eight key ones (excluding the final recommendation that the Task Force's work be "institutionalized" within the ABA). Three strike me as excellent and overdue, namely:
*"There should be greater heterogeneity in law schools" (p. 23-24). That's certainly a theme I've mentioned in the past. There's heterogeneity not just in colleges and universities (of which there are many more), but also even in medical schools (a fact captured even by U.S. News, which ranks "research" schools separately from "teaching" schools [though the latter also do research]).
*"There should be greater heterogeneity in programs that deliver law-related education" (p. 25). This is part of a general and sensible theme in the WP, namely, that there need to be systems of certification for certain kinds of legal professionals "who are qualified to provide limited law-related services without the oversight of a lawyer" (p. 25).
*"The regulation and licensing of law-related services should support mobility and diversity of legal services" (p. 28). Again, there's no point in heterogeneity of law schools and law-related programs, if there isn't a change in regulation and licensing of those providing different kinds of legal services.
One other recommendation strikes me as sensible, but already widely recognized, namely that, "there should be clear recognition that law schools exist to teach people to provide law-related services" (p. 26). No evidence is adduced of who exactly doesn't recognize this. The Task Force should not visit the sins of, say, Yale Law School on the academy as the whole!
Two of the recommendations strikes me as sensible but largely empty as formulated:
*First, it would be great for the "financing of law-related education" to be "re-engineered," but the Task Force, by its own admission, does not really have any concrete proposals. It is true, for example, that the "current system of lending distances law schools from market considerations" and also facilitates "unfettered pursuit of status" (p. 23). But it doesn't completely eliminate market forces: schools still compete for students, for faculty, and for jobs for their graduates. Does the Task Force want to recommend no student lending for legal education? That would seem inconsistent with the idea that legal training is a public good (a theme I'll come back to in another post, but which the WP emphasizes). Here's a more tangible proposal the Task Force might adopt. Recall that it was Bush Senior's Justice Department that ended "collusion" among Ivy League schools on the nature and size of financial aid awards, which used to be overwhelmingly need-based. Perhaps it is time for the ABA to push to reverse that, to permit a bit of "collusion." There may still be perverse competition in "merit" awards by schools on the cusp of moving "up" to another peer cluster, but there would be far less of it within clusters of schools of similar stature, and thus fewer cases of the students with the weakest credentials (relative to others at a particular school) paying the most (a phenomenon Brian Tamanaha correctly diagnosed a number of years ago, and which the WP also notes).
*Second, it would surely be terrific for there to be "greater innovation in law schools and in programs that deliver law-related education" (p. 27), but that will only take place through some ABA deregulation that creates room for those innovative experiments. So this just seems like pointless exhortation, and otiose with respect to the real issue: the loosening of regulatory strictures on both the educational and licensing side of things.
Finally, two recommendations strike me as unclear or misguided.
*The suggestion that law schools need to emphasize "delivery of value to students" (pp. 25-26) is just mumbo-jumbo "management-speak," and nothing else. Law schools are well aware that they are "in the business of delivering legal education services," but they are also academic institutions, not the corner grocery. Regulatory loosening will create "competition" (the supposed panacea of all market enthusiasts), and then we will see what happens. But in an otherwise thoughtful WP, this section stands out as slightly ridiculous.
*It's hard to argue with the abstract proposition that "there should be constructive change in faculty culture and faculty work" (p. 28) But what the Task Force really seems to have in mind is that faculty should teach more and write less. The WP makes the dubious assertion that it is "entrenched [faculty] culture and structure that has led...to declining classroom teaching loads and a high level of focus on publishing and research" (p. 28). In fact, it is market competiton for faculty that has produced these trends, and if some of the changes recommended elsewhere in the report occur, perhaps this competition will abate. The WP seems largely enamored of "markets," and they should be clear that it is market forces that have reduced teaching loads. In that regard, the WP is right to recognize that "some, perhaps many, law schools will continue to operate under the current model" with respect to what the WP calls "faculty culture" (p. 28).
The "specific recommendations" of Section VIII pertain to implementation of the Section VII themes. Most seem pretty sensible (thoughsome fall into the category of mere 'exhortation'), and largely contribute to the strongest themes from Section VII. I'll just mention one where the Task Force should be cautious:
*If the Task Force would like to empower Deans who want to implement the WP's goals, then it will be a serious mistake to remove the requirement that Deans be tenured faculty. A Dean without tenure will be a Dean who can get very little done.
I do commend the Task Force for specifically noting (p. 34) the perverse effect that the use of "expenditures" data in the U.S. News rankings has had--the ABA should issue a strong statement condemning that practice. And a bold move would be for the ABA to produce its own metrics of law school quality, that would help loosen the grip that U.S. News has on many law school applicants.
In one or two follow-up posts, I'll have some more specific, critical comments about portions of the WP. But, as I said originally, this is a serious and thoughtful document, for which the Task Force deserves thanks.
UPDATE: Part II of my commentary.