Balkinization  

Friday, October 07, 2011

Why Law Schools Need External Scrutiny

Brian Tamanaha

Get ready law schools: A Senate hearing on the ABA regulation of law schools might be coming. That is the subtext of Senator Boxer's most recent letter to the ABA. It's overdue.

Law schools have demonstrated time and again that we are incapable of regulating ourselves. It started a century ago, when AALS and ABA wrote accreditation standards to keep out competition from lower cost urban law schools that educated immigrants and working class people. It was on display in 1995, when the Department of Justice filed a civil antitrust suit against the ABA, charging that legal educators had captured the accreditation process and were using it to ratchet up their wages and reduce their teaching loads. And it is happening again now--as highlighted by two recent examples.

The recent disclosure that Illinois law school had submitted false LSAT and GPA medians to the ABA and US News was bad enough (coming on the heels of Villanova's similar disclosure), but that is not the worst of it. The real scandal is that law schools and the ABA have created a bizarre arrangement that appears designed to allow false reporting.

Law School Admissions Council (LSAC) administers the LSAT and maintains records on every single law student at every accredited law school in the United States. The ABA and LSAC jointly publish the ABA-LSAC Official Guide to ABA Approved Law Schools. Both the ABA and LSAC put their imprimatur on the validity of the data.

Now here's where the arrangement gets strange. The ABA asks each law school to supply data on the LSAT and GPA of the 1L class, and it publishes in the Official Guidebook whatever information law schools submit. What's weird about this is that the co-publisher of the Official Guidebook, LSAC, has this information in its database (literally). The ABA could simply ask LSAC (rather than law schools) to supply this information (but it doesn't), and LSAC puts its name on a book that contains information that it could easily check (but it doesn't). As a result, law schools can submit false information with impunity.

Rumors have circulated for years that a few law schools have been submitting false information to the ABA (these rumors include prominent law schools as well as lower down schools). Yet the ABA never asked LSAC to verify the numbers, and LSAC never told--despite the fact that both organizations jointly put their name on the "Official Guide" to law schools.

LSAC could blow the lid off this tomorrow by supplying the true LSAT and GPA medians for every law school for the past ten years--but it won't. Why not? LSAC President Daniel Bernstine explains, “That’s just not something we have done historically, and I don’t see why we would. We are not in the reporting business. We don’t distinguish between our [law school] members.”

You see, LSAC is a non-profit organization controlled by law schools (revenue of $70,000,000 last year), with a board of trustees nominated by law schools (and the President, who earned $600,000 in 2010, is a former law school dean). LSAC apparently views its primary loyalty as properly oriented toward law schools--that is--toward protecting its constituent members.

One might wonder why the ABA would go along with such an arrangement, and would put its name on an "Official Guidebook" with an organization that exists to serve the interests of law schools. After all, the ABA is supposed to be regulating law schools.

Well, the thing is, the ABA Section on Legal Education has itself long been dominated by legal educators. That's what got the ABA into trouble with DOJ in 1995, and the intertwining of the ABA and AALS (a lobbying organization for legal educators) goes back more than a century. It's a good old-fashioned story of regulatory capture.

That brings me to the second recent event which confirms that law schools need external scrutiny.

As Senator Boxer's recent letter observes, the ABA made the inexplicable decision to remove from its survey of law schools for this year the question asking what percentage of the class of 2010 had obtained jobs that required a JD (nine months after graduation). This decision is inexplicable because the precise charge of the committee was to improve transparency, yet they chose to delete (this year) the single most important question.

The explanation for this decision is that they needed time to work out the meaning of "JD required." Never mind that the question is straightforward and that the definition they came up with for 2011 is essentially the same as the question that was used in previous years. By omitting this essential question, the ABA created an artificial gap in information which allows law schools to not disclose what percentage of the class of 2010 obtained jobs as lawyers.

Why would they do this? I don't know. It may have been a decision made in good faith for the reason they provide. But it is hard not to notice that a few key participants in this decision are from law schools that had dismal employment rates for 2009, rates which would be even worse for 2010. And now law schools will not be required to disclose the information because the ABA is not asking for it (of course they are free to voluntarily disclose it).

It's time to have external scrutiny by a body that is not beholden to law schools. The Senate has a particular interest in this matter because federal loans are keeping law schools afloat (and tuition high).

Comments:

"We are not in the reporting business."

This is one of the most disingenuous statements ever made by an LSAC official. Reporting is exactly what LSAC does best: providing extensive reports to both law schools and to pre-law advisors.

For example, I can readily tell you what the median scores and GPAs of applicants, admittees and matriculants from my undergraduate institution to just about every law school in the nation, for the past 20 or so years. Why? Because LSAC provides comprehensive reports to me and to every other pre-law advisor who requests them (and agrees to keep information that identifies individual students confidential).

If LSAC can provide this information to each undergraduate institution, they can clearly provide the aggregate data. Indeed, with the Villanova disclosures, I was shocked to learn that the Official Guide numbers are not in fact taken from LSAC's comprehensive database -- I assumed they were, because why wouldn't they be?
 

Brian closes with this:

"The ABA is not 'external' because the committees that take up the affairs of law schools are dominated by legal educators. It's time to have genuinely external scrutiny by a body that is not beholden to law schools."

What about the role of the large/medium law firms that hire and have to train recent grads to make up for perhaps the failures of law schools to prepare grads to practice law? Are they genuinely external enough to scrutinize? Or how about the corporate clients of these law firms that end up paying for such training beyond law school? Are they genuinely external enough to scrutinize? Or how about clients in addition to corporations? Are there disclosures that can benefit all clients?

The elephant in the room is the economics: costs to law school students, expenses of law schools, costs to law firms passed on to clients, costs to the public fisc (loan guaranties) and in the end the consumer (over)paying for legal services. And of course there is the conflict between collectivism and individualism involved with legal education. While the ABA may have conflicts, I question whether Congress is in a position to fully address and resolve the problems. But something must be done, as my bottom line is that a client should be able to expect the appropriate delivery of legal services. The law may be a jealous mistress, but sometimes she dozes off.
 

Shag,

I agree. I am working on a book that examines the economic model of law schools. I've changed the ending of the post to mention the economic factor that matters above all else: the federal loan program.
 

The implication is that some law schools are providing false information to the Official Guide while providing truthful information to LSAC. But if LSAC suddenly decided it would start ratting out the malefactors, wouldn't those law schools simply start providing false information to LSAC as well (assuming they aren't doing so already)? Does LSAC have some way of auditing the information it receives from its constituent members?
 

I have been trying to post a comment all morning, and it never shows up. i've tried different computers and browsers. What is up?
 

Why isn’t a good answer to this problem to simply to get out of the statistics providing business all together? There is no likely presentation of stats that could not draw the charge of being misleading in a situation where the information is being sold as a sound indicator of whether a person should go to law school, or a particular law school. Schools gather information from graduates. Many people, in all professions, do not like to report their salaries. How will schools, or third parties, force them to do that. If they could, do we want to? Why should the interests of prospective students outweigh the privacy interests of graduates? Everyone keeps saying, “Oh, this is really easy to do” without specifying exactly how schools are to gather accurate information on a yearly basis about who is where and how much they make other than by relying on graduate reports. Even if the reports are accurate, and too few people respond, say on the salary question, people will still say the numbers are faulty. If there is any significant lag time in gathering info, the charge will be that the information is misleadingly stale.
Why nine months out? Gestation? The academic calendar? Why is that number salient? Are people going to make a decision about a career based on numbers that say where people are and what they are making nine months after graduation? It just does not seem realistic. Schools need to have this information for all kinds of reasons, but to sell it as answering the question whether a student should go to law school is problematic.
Instead, why not a simple disclaimer: “Attending law school is an expensive endeavor. Graduation from law school does not guarantee employment” Then the person who is seeking to do this will be forced, if they are diligent, a good trait in a lawyer,to do homework about the profession he or she wants to enter.
 

Steve,

LSAC administers the LSAT and applications to law school--it does not depend upon law schools for the information.

EH,

The decision to invest three years and $150,000 to $200,000 to attend law school should be made on the basis of some concrete information about the likely return. What kind of information, and how best to collect it, are certainly open to debate. But at the very least prospective students should know what percentage of the class landed jobs as lawyers, and they should not be provided with misleading information.
 

The question is whether the kind of information gathered, even if reported accurately, actually does what people are suggesting it does: give prospective students dependable evidence of ROI of a law school degree. We have gotten into the habit of saying that 9 months out information about jobs and salary does that. We can say that, but there is little reason to think it makes sense to rely on that in the long term.
I just don't think that the "how" of it should be minimized in favor of just saying over and over again that it should be done.

You know this better than I: what other professional schools provide this info on a school by school basis, and how do they do it? There might be lessons there.
 

or "do that"
 

HDL,

I don't know much about other professional schools, although medical and dental schools do not have our over supply problem.

We focus on 9 months out because the question has been asked that way--nothing inherently set in this--although it is sensible to assume that anyone without a job at this point will be in trouble when competing with a new crop of graduates for a job.

There is some information about the career path of graduates. A book, Urban Lawyers, is excellent, and the current Ater the JD project (following the class of 2000). The most important finding is that one's fate is significant set with the job upon graduation. Anyone who lands in the corporate legal market (these jobs are obtained after the 2nd year summer) will do well financially, and the rest will have a lower earning trajectory (the bi-modal distribution of pay persists).
 

Thanks
 

Professor Tamanaha

Would you be willing to testify at a congressional hearing?
 

Would it be too snarky to suggest that this is the sort of thing you should expect, when you let lawyers run something? Who else is committed to the notion that "can get away with" = "ok to do"?
 

These schools know that students enter them with an unrealistic idea of what can be earned upon graduation. The students glean this information from web sites that purport to be factual.

Students are trusting and they are not likely to think that a whole huge university law school is a scam operation designed to get them to borrow huge sums on behalf of the law school, which they will have to pay back.

Youngsters think, being naive, "Adults are running these places; there must be some oversight; someone would prevent them from simply lying; this is the legal profession, after all."

By "youngster" I mean a naive 23-year old who doesn't know what to do with his life and thinks "law school."

Disingenuous is a good word for this whole subject. If law schools were run by men or women of integrity, they would halve the size of their incoming classes, because there are no jobs out there. If they had integrity, they would not let anyone borrow more money than they could repay on the average salary earned by graduates of that school. Instead, they continue full speed ahead, sucking in people who are going to strangle themselves with debt in a few years. These law school deans won't stop until they are stopped by others.

I speak as the father of a child who got sucked in by Northeastern University Law School and its "financial aid" office. I will say no more except that I hate that soulless law school and its slimey dim-bulb bureaucrats and its crooked administration.
 

Good post, although LOL at your statement,

"This decision is inexplicable because the precise charge of the committee was to improve transparency, yet they chose to delete (this year) the single most important question."

It's perfectly explicable for very obvious reasons although I can see why you wouldn't want to call your colleagues scheming criminals in your post.

P.S. As I understand they also stopped distinguishing between full time (i.e. real job) and part time (i.e. any person who is breathing) employment, which IMHO is as bad as not distinguishing between legal/non-legal employment.
 

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