A move is afoot by the ABA Section on Legal Education and Admission to the Bar to disconnect the obligation to provide tenure from the accreditation process. At Balkinization,  Brian Tamahana explains:

The purpose of the proposed changes is to allow law schools greater flexibility in finding cost efficient ways to train lawyers. According to the AALS, that’s an erroneous view of what law schools are about. “Lawyers are not ‘produced’ or even ‘trained’ by law schools,” declared former AALS President Reese Hansen in opposition to the changes (critics who excoriate law schools for doing a poor job of training lawyers would heartily agree, though Hansen undoubtedly did not mean to imply that). “What lawyers must ultimately deliver is judgment….That kind of mature judgment is primarily created by personal interaction between individual faculty and individual students in countless educational settings.” The argument of the AALS appears to boil down to the assertion that law students can obtain sound lawyerly judgment only if law schools are staffed by full time law professors with tenure.

Paul Caron at  Tax Prof Blog provides some salient outtakes from the  AALS letter in opposition to the changes:

Those who seek to alter the fundamental assumptions underlying accreditation and its role in the system of legal education should bear the burden of justifying that need to the legal education community and all those who rely on the high quality of American legal education.

We therefore ask the Council and the Standards Review Committee to take the following actions:

1. Reject the radical proposed changes to the role of faculty, and other changes to the standards that would weaken, rather than strengthen, legal education.


2. Initiate a process for the specific purpose of allowing all important constituencies to understand and debate the vision animating the current proposals and their combined effect on legal education.


3. Undertake or commission an independent, fact-based study of the actual cost drivers in legal education, and their relationship with the accreditation process.

And over at Concurring Opinions, Dave Hoffman provides some additional lawprof color, as he’s taken the decidedly minority view within the Academy that disconnecting tenure from accreditation won’t be the end of civilization as we know it.

The majority may have been motivated, by contrast, by a fear of a “race to the bottom.” Once a single law school offers cheap legal education without tenure (and without incumbent-protecting rules such as those that prohibit law students’ outside employment), we’ll all circle the drain and become diploma mills.  

Tamahana is hardly as kind in his commentary.

Frankly, these claims about what we do as law professors are embarrassing. I’m not selfless. Exceedingly few of the many law professors I know strike me as selfless. This is a fantastic job, for which we are generously compensated. Law school deans–many of whom earn between $200,000 and $400,000–are definitely not selfless. We don’t model selflessness for our students. And the truth, contrary to Hansen’s above assertion, is that many law professors engage in scant interaction with law students, so we do very little modeling of any kind outside of the classroom. (I should add that lawyers today are anything but selfless, which further belies the assertion that we influence our students in this fashion.)

I also don’t see how “public service underlie[s] teaching.” Teaching in a law school is not a public service. A few law professors on every faculty work on bar committees and such, but not the majority of us. Legal aid lawyers and public defenders are doing public service, perhaps also prosecutors and judges, but not law professors. We teach, we write, we serve on law school committees, and we engage in consulting of various sorts. This standard package of law professor activities does not constitute “public service.”

Cut to the quick, the question is whether a change in ABA accreditation such that law schools will no longer be required to offer tenure will result in a cottage industry of cheap diploma mills taught by fly-by-night legal charlatans or spell the death of cushy lawprof jobs with huge paychecks while feigning selflessness and penning articles that no one will ever read.

There can be no doubt, as both Tamahana and Hoffman assert, that the primary motivation for the AALS and its constituent faculties is to preserve the fabulous lifestyle of the rich and famous lawprofs.  Of course, that doesn’t mean the dire predictions of gutter law schools lacks merit. 

For quite some time, the disconnect between the academics’ vision of law school and the practitioners’ vision has been manifest.  What we see as a monstrous and unacceptable gap in practical education they see as turning it into a “trade school.”  Resort to derogatory descriptions aside, the words of Marquette Law School Professor David Papke ring in my ears,  where he informed the heathen lawyers that scholars were above teaching students to be lawyers.

We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

The “we” Papke refers to are the law professors, the entitled academics who feel no shame that law students pay for their indulgence to “appreciate the depth of the legal discourse and explore its rich complexities.”  Right, and they graduate without the slightest clue how to draft a motion.

I take no issue with the proposition that there be a Ph.D. program in the “rich complexities of the law,” for those who want to dwell on legal discourse.  Whether anybody would enroll is such a scholarly endeavor is another matter, but you can have all the tenured faculty you want, or can afford.  But this has nothing to do with why people go to law school.  Students attend law school to become lawyers, not pay the salary of self-indulgent legal scholars.

I give Hoffman and Tamahana a lot of credit for bucking the tide as well as their wallet in taking a contrary position to the AALS.  And the most ironic aspect to the scholars whining about the possibility that this will turn law school into a trade school is how their faculty positions sound remarkably like trade unions.

So no one will bother to write law review articles is they don’t have to gain tenure?  We’ll survive.  And if keeping your job depends on lawprofs being better teachers, we might even thrive.