The ABA Task Force on the Future of Legal Education wants to change everything

A peril with the ABA Task Force on the Future of Legal Education is that it recommends changes; it does not implement them. So it is now incumbent upon a series of other actors (including other sections of the ABA itself) to act upon its recently-released report and recommendations.

The report is concise, punchy, and thorough. Its specific recommendations are clear and numerous.

It first recommends another task force to evaluate pricing and financing of legal education, this one to address the concerns discovered by the task force, such as the rapid increase of tuition, discounting based on LSAT scores, lack of need-based discounting, and loans, among other things.

It then asks the Section of Legal Education and Admissions to the Bar to eliminate or substantially moderate a number of standards. These standards, the Task Force concludes, "directly or indirectly raise the cost of delivering a J.D. education without commensurately contribution to the goal of ensuring that law schools deliver a quality education," and "directly or indirectly impede law school innovation in delivering a J.D. education without commensurately contributing to the goal of ensuring that law schools deliver a quality education." Those standards and interpretations recommended for elimination or substantial moderation include:

  • Standard 206(c) (requiring that, except in extraordinary circumstances, a dean be a faculty member with tenure)
  • Standard 304, and specifically Standards 304(b) & (c) (a 130-day academic year; 45,000 minutes of attendance in regularly scheduled class sessions; requiring that a J.D. degree be completed no earlier than 24 months after commencement of law study)
  • Interpretation 304-5 (requiring that credit only be given for course work taking after the student has matriculated to a law school)
  • Interpretation 305-3 (prohibiting credit earned for field placement in which student receives compensation)
  • Standard 306 (limiting and conditioning distance education)
  • Interpretations 402-1 & 402-2 (restricting faculty-student ratio and discounting non-tenured and non-tenure track faculty)
  • Standard 403 (limiting instructional roles of non-tenured and non-tenure track faculty)
  • Standard 405 (regarding tenure)
  • Standard 603 (requiring certain standards for the director of the law library)
  • Interpretation 701-2 (requiring a certain amount of "adequate physical facilities")
  • Rule 25 (requiring confidentially over all matters relating to accreditation of a law school, including the site evaluation report)
  • Rule 27 (prohibiting disclosure of statistical data reported to the ABA)

It's ironic, I think, that, at the very time the ABA Task Force on the Future of Legal Education has identified a "mismatch" between curriculum and goals; "diverse views" on the purpose of law schools; a need for "greater heterogeneity" in law schools and legal education; and innovation to reduce the cost of legal education; that, at the same time, the ABA Section of Legal Education and Admissions to the Bar has proposed a new, likely more expensive, homogenous proposal about experiential education.

This is a dramatic series of specific recommendations, some of which are quite long-standing. But here's where I think one may see resistance. The existing 201 or so schools are already built on this model. Even if these standards and interpretations are abolished, it would be very difficult for an existing school, barring a complete overhaul, to use them effectively.

Instead, the biggest opportunities exist in new law schools (ironic, I know, given that there are so many existing schools). It's through pressure from new, smaller, sleeker, more nimble schools structured around a lower cost model that the existing law school model would be truly forced to change (apart, of course, from its present state of triage as it relates to a declining applicant pool). And, of course, it's a reason why law schools would be unlikely to want to adopt these changes.

The report goes on to recommend that law schools--and not just the institutions, but also law faculty members--should undertake certain steps. Here they are:

Each law school should undertake the following:

1. Develop and Implement a Plan for Reducing the Cost and Limiting Increases in the Cost of Delivering the J.D. Education, and Continually Assess and Improve the Plan.

2. Develop and Implement a Plan to Manage the Extent of Law School Investment in Faculty Scholarly Activity, and Continually Assess Success in Accomplishing the Goals in the Plan.

3. Develop a Clear Statement of the Value the Law School's Program of Education and other Services Will Provide, Including Relation to Employment Opportunities, and Communicate that Statement to Students and Prospective Students.

4. Adopt, as an Institution-Wide Responsibility, Promoting Career Success of Graduates and Develop Plans for Meeting that Responsibility.

5. Develop Comprehensive Programs of Financial Counseling for Law Students, and Continually Assess the Effectiveness of Such Programs.

Law school faculty members should undertake the following:

1. Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member's School.

2. Recognize the Role of Status as a Motivator but Reduce its Role as a Measure of Personal and Institutional Success.

3. Support the Law School in Implementing the Recommendations in [the section above].

How will law faculty, and law schools, respond? Time will tell.