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September 20, 2013

ABA task force releases its draft report

by Dan Rodriguez

here is an early commentary from the Chronicle of Higher Education, reprinted in full:

Panel Suggests Dropping Tenure Requirement to Reform Legal Education

By Katherine Mangan

Law-school accreditation standards, including the requirement for tenure, would be relaxed and scholarships would be redirected to students who need them rather than those who help schools climb in national rankings under a draft proposal released on Friday by the American Bar Association’s Task Force on the Future of Legal Education.

The report offers a variety of recommendations for a system the panel says is reeling from soaring tuition and student debt loads, three years of sharply falling applications, and significant, possibly structural changes in the legal job market.

“These have resulted in real economic stresses on law schools, damage to career and economic prospects of many recent graduates, and diminished public confidence in the system of legal education,” the report says.

Among its specific recommendations:

  • The ABA should “repeal or dramatically liberalize” certain accreditation requirements to allow law schools to be more creative in restructuring their programs, cutting costs, and offering a variety of options to students. The standards that could be relaxed include requiring accredited schools to offer tenure.
  • Law schools should work with licensing authorities and the bar association to help produce graduates who can provide basic legal services that don’t require the expertise of someone with a J.D. degree. They should follow the lead of the State of Washington, which is producing “limited-practice lawyers,” who offer services that are affordable to low-income clients and those living in rural areas or small towns. A few other states are also moving in that direction.
  • Law schools, which have been expanding hands-on training in recent years, should do even more to teach practical lawyering skills. State supreme courts should test law graduates more on such skills and less on academic subjects.
  • U.S. News & World Report should stop using expenditures per student as part of its methodology for ranking law schools. Doing so encourages law schools to spend more and raise tuition, the task force says.

The panel’s chairman, Randall T. Shepard, said in an interview on Thursday that he expected it would be “both revered and reviled” when educators begin dissecting the report. He is a retired chief justice of the Indiana Supreme Court and visiting professor at Indiana University’s Robert H. McKinney School of Law.

Confronting a Crisis

The task force was created in July 2012 and charged with making recommendations to the bar association on how legal education could be overhauled to deal with its current crisis.

Applications to law schools were down 18 percent this fall, marking the third consecutive year of double-digit decreases. Many schools have responded by cutting the size of their entering classes.

As part of its yearlong information-gathering process, the task force held two public hearings and conducted an online conference as well as a forum for law-school deans. It solicited input from educators, judges, regulators, and other interested parties.

The panel is circulating its draft recommendations for public comment, which it will consider in preparing a final report to be presented, probably in November, to the ABA’s House of Delegates. That body is expected to vote on the recommendations in February, a spokesman for the bar association said.

The recommendation to drop tenure as a requirement for accreditation is bound to create intense controversy. Justice Shepard said he expected most law schools would continue to offer it to remain competitive in faculty recruiting.

Faculty members, the report says, tend to resist the kinds of changes legal education needs to consider. “This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship,” it concludes.

Serving Basic Legal Needs

The entire way the nation delivers legal services needs to be re-examined, the report goes on to say.

The current system of legal education focuses on the J.D., which requires four years of college followed by three years of law school.

By the time students graduate, most have incurred so much debt that they can’t afford to represent the many low-income and minority clients who earn too much to qualify for legal aid, but not enough to pay full market prices, the report notes.

While those groups are underserved, law firms that charge high prices for their services are hiring fewer new associates, leaving a mismatch between the country’s legal needs and the professionals who are trained to meet them.

What the country needs and law schools can help produce, the report suggests, are professionals with basic legal skills who can handle routine tasks, such as helping people facing foreclosures. Because their training would be cheaper and faster, they could afford to work for lower salaries.

“The current lack of access to legal advice of any kind that exists across the country requires such innovative steps,” the report says.

It also calls for a shift toward more need-based scholarships. Under the current system, “students whose credentials are the weakest incur large debt in order to sustain the school budget and enable higher-credentialed students to attend at lower cost,” the report notes. While chasing students with high grade-point averages and high scores on the Law School Admission Test and offering them generous scholarships help schools jump in the rankings, that approach leaves too many graduates with overwhelming debts and dismal job prospects, it says.

The report also calls on all of the players in legal education to stop “moralizing and blaming” and to presume that everyone is acting in good faith to fix a system that’s badly in need of revamping.

One Educator’s Response

Prominent legal educators who have reviewed earlier drafts of the proposal have started weighing in.

Michael A. Olivas, a professor of law at the University of Houston and a former president of the Association of American Law Schools, said schools are already experimenting with curricular models. Relaxing accreditation standards would be mistake, he said, particularly when it comes to the requirement that schools offer a tenure system.

“When times are bad, you need the regulatory process more than ever,” he said, adding that he spoke only for himself. “I want to strengthen the hand of the ABA. I don’t want 200 free-for-alls at all the various schools.”

Mr. Olivas called the idea of developing a process for nonlawyers to offer basic legal advice “craziness” and said it would lead to more unauthorized practice of law and would hurt the low-income clients it was designed to serve. And relying more on part-time, non-tenured faculty members, which the report suggests law schools should be free to do, would lead to more faculty turnover and less institutional loyalty, he said.

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