Friday, March 21, 2014

ABA Once Again Proves What It Really Cares About

We spoke a couple of weeks ago about the proposals to overhaul the tenure requirement at law schools.

As of March 17, any proposal to change the tenure requirement is officially off the table. This decision proves that, once again, law schools and professors only care about their bottom line. Any attempts to change a dying system will be vigorously opposed and squelched. But fear not, this decision to preserve tenure doesn't matter when there is so little money coming in that the law schools may have to shut their doors. Then the law professors' fight for tenure will become totally moot.

I leave you with a quote that I hope can be looked back upon as the height of cluelessness on the parts of law professors and their supporters:
 “Tenure is not a perk for law faculty. It’s a protection for people who think it’s important to innovate in law schools. You need to feel comfortable in order to be able to try new things.”- Judith Areen, executive director of the Association of American Law Schools


  1. Depressingly predictable.

    "'The comments we received were overwhelmingly in favor of keeping some form of tenure system,' [chairman Solomon Oliver Jr., chief judge of the U.S. District Court for the Northern District of Ohio] said. 'Those comments came from throughout the law school teaching profession...'"

    At this point, I'm hopeful that such moves will ultimately be more destructive than preservative. It's hopelessly clear at this point that the current batch of law professors are simply milking the system until it collapses, at which point they'll have "theirs" and they can disappear off into retirement funded by student loans, leaving the mess for everyone else to clear up. It's not their problem at that point.

    So now, we have the interesting situation where those who are most able to reform the system and preserve it for the following generations - law professors - have taken a major step in making sure that they have no incentive to reform anything whatsoever. Their jobs are protected, they don't need to make legal education more efficient and effective, they don't need to worry about job security anymore. They can continue to produce little scholarship (like most tenured professors, whose publication habit ceases as soon as they receive the keys to the cashbox) while teaching a minimal course load each semester.

    And we can capitalize on this situation, because each year that law schools fail to reform is another year when applications will drop.

    I'm still of the opinion that we just need one school to close, just one, and the knock-on effects from that will be devastating for the entire system the following year. The lemmings who still flock to low-end law schools might finally get the message that the system is as broken and worthless as for-profit online colleges.

    Trying to make lemonade out of this, but it's difficult when law professors keep pissing in the jug...

    1. I agree with your general premise, but it might take more than one collapse. If Indiana Tech closes I don't think it will have the desired effect; even most lemmings probably see that joke for what it is. And if Appalachian or Vermont go under that can be written off in their rodent brains as the result of being in an isolated, rural area. What you really need is the demise of a TTT in a metropolitan area. Hamline might do the trick but it might take an older TTT in a larger metro area. But of course the implosion of an Appalachian or Vermont before would amplify the effect.

    2. What about Hofstra? Campos suggested it might be in trouble on his blog last fall. Now with it dropping further in us news it might be in real trouble.

    3. Look at how tuitions and other fees rose just in the last decade. Rapid exponential growth. Such growth almost always ends in overshoot and collapse. By cutting costs severely now, voluntarily, they could then start easing back their prices and forestall this. Instead they seem incapable of making the short term sacrifices necessary. Human nature. We are supposed to be rational animals? Not really.

      Reminds me of a quote from a NYT article on overfishing from a couple years ago:
      “It’s going ... We’ve got to fish harder before it’s all gone.”

    4. Why, Oliver, what a surprise that people "throughout the law school teaching profession" favored tenure! I wonder why that would be.

    5. Excuses will be made for the first few schools no matter what: Indiana Tech opened at the worst time; Appalachian and Vermont were isolated and rural; a metropolitan TTT had high expenses and too much local competition. A single closure can easily be dismissed. But three or four in rapid succession will get attention.

      Hofstra would be great as the first skule to close, especially because it once had some ill-deserved prestige.

    6. Hey, 6:15, 6:32 here. Just want to say I agree 100%. You ran with my ideas a bit farther and took them to the next level. That's the key, we need to see a nationwide crisis to start a real panic.

    7. Don't forget to include La Verne, Western State, and Thomas Jefferson in the death watch. For more information on Thomas Jefferson, check out an NYT article entitled "The Monster of Monticello."

  2. Stuggling law grads would certainly like to "feel comfortable" so they could "be able to try new things" as well. Unfortunately for many, they are consigned to student loan misery coupled with unstable, low-paying jobs.

    Not that Yalies like Judith care about the plight of the unconnected. Rich Boomers gonna Boom.

    1. Her claims about "innovat[ing] in law schools" are typical aristocratic shite. Law professors are among the least innovative people on the planet.

      Who else nowadays gets tenure's "protection"? Where else is the "need to feel comfortable" even a consideration in the employment contract?

  3. Of course, the law school pigs voted overwhelmingly in favor of preserving tenure. What the hell did the AALS expect?!?!

    If you had asked Al Capone, Lucky Luciano, Bugsy Seigel, Meyer Lansky, et al. if they wanted to preserve their line of "work," the vote would have been overwhelming as well.

    In the end, this may prove to be more destructive than beneficial to the law school cockroaches. Perhaps, these people are so out of touch, that they actually BELIEVE the U.S. lawyer market will make a robust comeback - in spit of outsorucing, LPOs, predicitve coding, ABA "Ethics" Opinion 08-451, greater public access to court opinions, statutes, etc. After all, at some point in the next 20 years, older attorneys are going to retire or die.

    1. Many of the attorneys who will die are already unemployed, so few new jobs will open up at their collective demise.

      I wish every attorney a long and happy life. Waiting for them to die, and promising employment based on their mortality, is a grossly inhuman approach that only the law school vampires could stomach.

  4. I agree w/ Charles and Nando. This will ultimately prove more destructable. The schools have made it absolutely clear that the only concern they have is to maintain their bottom line. Understandable. Unfortunately, what the schools haven't yet realized is that maintaining their bottom line requires that their 'customers' - the graduates - be satisfied. They haven't yet made the connection that their customers have to be satisfied in order for them to maintain their revenue stream. How long could a lawyer who gets bad results stay in business? Now, some of you might be saying, "for quite some time if s/he had subsidies (such as student loans) to help prop up the business." And you would be right.

    And therein lies the problem. As long as student loans continue to flow without any accountability, there will be no incentive to change. I think it's time for step #2. The scambloggers have done a GREAT job in getting the message across and highlighting the issue. Now that the 'message' has been advertised in a way that only the current generation could do, the next step is to take action that goes to the heart of the problem and to the revenue stream for the schools: the source of their income - student loans.

    I am proposing that legislative action be taken, political bodies be solicited, and that we use the current media interest in the subject to propel the issue to the next level - generating general public and legislative awareness about the amount of money going into backing student loans in order to keep law school doors open, even when most graduates will not be able to pay such student loans back. I am proposing a campaign that solicits the legislature and the general public to focus on the only thing that can stop the scam: the use of public money that can never be paid back to fund the scam.

    I am thinking of creating a website that will gather signatures to be sent to Congress, along with compelling stories as to why federal guarantees for $150,000 worth of law school tuition should be stopped. I am also volunteering (along w/ anyone else who is tired of the current status quo and would like to join me) to go meet w/ senators and generate publicity w/ the media (I used to work in the media so it's a familiar medium to me) for a proposal that would only allow federally backed student loans to be used for law schools that have proven employment results (therefore ensuring that the money would be paid back.) I would love to know what others think about this. My passion for this is that I truly believe that if the funding for law schools isn't stopped, tuition will continue to rise uncontrollably, thereby preventing the next generation of low-incomed and middle-incomed individuals from entering the legal field. I was hoping that somewhere amongst the law schools there was this concern, but as all can see, my hopes have been disappointed. If we don't do something, our legal system will be permanently affected and permanently closed to the lower and middle classes. It is up to those who care to do something, because the law schools are too self-interested to consider the issue.

    I think it's time to take things to the next level, especially now that public awareness is on our side. Bitching is great - it gets the message across. But there comes a time when it's either shit or get off the pot. Any thoughts?

    1. No. There is no next level. It all is what it is.

      Common sense says that a system that enriches a relative few VIA the no way out lending to the many cannot last forever.

      Or maybe it can?

      For that matter, maybe many other classes of "Loans" can qualify for nondischargeability in bankruptcy court?

      The way things are going, maybe a crappy starter credit card will follow an 18 year old with virgin credit to the 90 year old grave, and accumulate whopping interest.

    2. Imagining, Nay, Even INNOVATING, The Open ToadMarch 22, 2014 at 11:09 AM

      "I used to work in the media so it's a familiar medium to me"

      Please tell us "pun intended"!


  5. 9:00 am here again.

    In addition, I would also be advocating that the ABA no longer be allowed to regulate the accredidation of law schools and that that function be properly returned to the Department of Education, since the Legal Education Section of the ABA appears to be too self-interested to protect the interests of all in regulating and accrediting the law schools.

    By the way, thanks to the ABA for this most recent decision - it's made me realize that it's time to shit and no longer simply sit on the pot and get some political action going. I hope that others who are tired of the self-interested status quo are willing to join me.

    1. I agree. I'd be in. The problem to me is, what do we want?

      Prospective fixes solve only one half of the issue: over-production fueled by ultra-easy, virtually unlimited credit. This leaves out those already drowning in debt. There, the 'man in charge' as it were is not the ABA, but Congress and the President.

      We all know which way that wind has been blowing for law students:
      *no bankruptcy
      *no consumer protection
      *functional compound interest rate that is not subsidized at all
      *if you refinance a student loan by shifting the debt to another instrument, such as a credit card, the debt is treated by the bankruptcy code as still being a non-dischargeable student loan
      *the just-released White House budget proposal changes PAYE / IBR and caps public interest forgiveness at 57k.

      The federal government cannot afford to give and will not give students a "bailout."

      The only federal entity that seems interested in students is the CFPB. They've actually got pages dedicated to whether it's a good idea to try to use home equity lines of credit to refinance your student loans. They are the ones saying disclosures to students going through federal loan entrance counseling are wholly inadequate. And they're right. The disclosure currently is only "This loan may be dischargeable in bankruptcy." I think the feds still claim the interest rates are "simple" despite capitalizing unpaid interest daily. In other words, bullshit.

    2. The ABA has proven itself completely incompetent to regulate the legal industry and legal education. Totally, completely, and hopelessly incompetent.

      Of course, this exact same result would happen if you let the largest pharmaceutical companies run the FDA or if you let defense industry run the DOD, etc...

  6. Law Professors love to try new things! Vacationing in Lipari instead of Vulcano, driving a Beamer instead of a Benz, eating abalone instead of ahi... all on the backs of their student loan dollar conduits...

    1. And teaching only six hours per year instead of nine.

  7. All due respect, but is this really surprising? Could it have been any other way? The ABA has never cared about the solo practitioner. I can't remember a thing it has done for the small practitioner in the last almost thirty years I have been practicing. If it doesn't care for the solo or small firms, do you think it would give a whit about law students? Remember who makes up the ABA. Elitists. And who do elitists generally associate with? Other elitists. And who do they vote in unison to protect? Gee, that is a tough one.

    1. Could not have said it better. The American Biglaw Association has contempt for small shops and solos. They look down on us as "losers", just as law professors look down upon all but the top 10%. (Shrug). Like likes like, I suppose.

    2. Ive worked in a number of different fields and I have never seen a profession so obssessed with status and prestige and hierarchies.

    3. It's not a profession, it's a pseudo-religion based on the belief that "prestigious" lawyers can accomplish magical feats contrary to reason and experience.

  8. Yes, we certainly all care whether or not the poor LawProf dears are "comfortable" in their plush, tenured positions. Doing real work, on the other hand, might involve something dangerous like getting a hangnail. Oh, the humanity!

  9. Good read:

  10. 11:02. Hofstra has fallen 26 places in the last two years. The only reason why anyone would want to go there is because they couldn't get in anywhere else. (Even CUNY is ranked higher.) These days getting into a decent law school is easy with the current market. I would expect Hofstra to have strong problems recruiting for next year's class. I wouldn't be surprised if lay offs didn't happen there soon.

    1. They also give fairly good financial aid to about a quarter of their students, unlike the nearly defunct prestige factories like Fordham and Hastings. Someone with a brain might turn down Fordham at sticker for full tuition (not to be confused with a full ride) at Hofstra.

      When I was contemplating law school, I even considered whether McGeorge or Golden Gate would offer me free tuition. Better than sticker at Davis or Hastings, I thought. Fortunately it never came to that.

  11. The funny thing about this is that exactly the same people who were screaming bloody murder about imposing a minimum experiential learning credit hour requirement on all law schools were strongly in favor of maintaining a one size fits all rule in regard tenure for law faculties.

    That pretty much tells you all you need to know about their intellectual honesty.

    1. Dear Prof. Campos (if that is your real name!),

      Do you have an estimate of the size of losses the Direct Federal lending program might sustain if law schools start going out of business?

      It's my understanding that federal students loans for students unable to complete a degree due to closing of the school will be discharged, without the need to even go through a bankruptcy. What happens if Appalachian School of Law closes with a 1L and 2L class unable to complete a degree there? Or Rutgers, or...any of the schools you estimated previously are currently operating in the red?

      Thanks! You are a gift to all of us.

    2. I can't speak for Prof Campos, but huge numbers of schools aren't going to close. If only a handful closed, then most of their students, being the dumbass lemmings they are, would merely transfer to existing schools, who would be happy to take them.

    3. It's true that if an school closes outstanding federal student loan debt of current students of the school gets forgiven. Given that current law students are carrying about seven billion in federal loan debt, even a dozen schools going under would cost the feds hundreds of millions in forgiven debt -- especially if the schools include massive operations like the Infilaw racket.

      Of course that's still a drop in the bucket in regard to the overall federal educational loan system, let alone the federal budget as a whole, but as somebody once said, a billion here a billion there -- after awhile it starts to add up to real money.

    4. But that debt is not forgiven if the student transfers to another law school. If an Appalachian School of Law or a Florida Coastal shut its doors, its students would be solicited by every toilet this side of the prime meridian. And many, maybe even most, would be foolish enough to transfer.

    5. It's not clear to me how many law schools will close, but you look at every risk to their solvency that is out there - those risks being interconnected - and I think it's entirely possible, if not probable, that a goodly number of law schools will fail.

      For instance:

      Bond Debt Downgrades:
      Schools are unlikely to be able to borrow large amounts of money to fill revenue gaps, and even if they can borrow the principal, the interest rate is likely well above-market. 26 law schools got bond downgrades in 2013:

      ...Thomas Jefferson is at junk bond status with a negative outlook. TJLS is done. It's all over but the bankruptcy. They cannot borrow their way out.

      Accreditation Threats:
      Eroding selectivity threatens bar passage rates, higher attrition, etc.. Those eroding metrics in turn threaten ABA accreditation. See, Florida A&M, and Rutgers. Lose your accreditation, and you can't compete for butts in seats.

      Student Loan Cohort Default Rate:
      If the default rate for a school's grads gets too high - as measured against some moving target cohort default rate - a school will lose the ability for its students to take federal loans to attend the school. No federal dollars = goose cooked, immediately.

      Changes to IBR / PAYE:
      If these programs are altered significantly, I believe law students will run for the exits, and prospective students will walk away. And why shouldn't they? Without those programs, we know full well the default rate would be astounding.

      If IBR/ PAYE is removed or is oppressive and insane (as being proposed in the newest WH budget) the default rates will explode overnight, and these schools will not be eligible for federal funds.

      Immediate Losses to Dept. of Ed:
      At some point, if the federal government is sustaining losses that are immediate and cannot be pushed out 25 years on an accounting trick - i.e. losses through Close School Discharges, instead of losses to cash flow through IBR/ PAYE - the federal government will go hunting for cash from these failing institutions. We all know the DOJ could easily find a charge to prosecute.

      I think the financial position of law schools is much worse than meets the eye, and the tolerance for their gamesmanship from Congress / White House is nearly done.

  12. I say fine...let them have their tenure. But, cut their pay. And cut administration's pay too. Sooner or later, it's in the crystal ball along with pink slips. The ABA is actually helping the demise of law schools by mandating status quo when enrollment is dropping, and hopefully, will continue to drop, to the point where it will be unaffordable to pay professors and the utility bills at the same time.

  13. How come there has not been a rebellion in any state ABA? Why is there no grassroots lawyer uprising against even one state's elected ABA leadership and replacement with anti-lawyer-overproduction campaigners?

    Lawyers know full well about the overproduction of lawyers, the unbelievably high cost of legal education, and the various anti-lawyer ABA policies (eg allowing outsourcing). Why haven't the existing lawyers fought back, let alone the flood of recent

    Can someone start an ABA Tea Party to clean house and demand reforms to lawyer overproduction and exorbitant law school tuition?

  14. If Hofstra closes, what will happen to its prestigious law review (currently ranked #75 on Wash&Lee)?

    Will it go the way of US News and World Report and become a stand-alone online journal that is still important to law professors?

    1. Maybe it should, following the example of You Ass News, transform itself into a different sort of publication. You Ass News used to be a major weekly magazine; now it's just a set of menaingless rankings of ejookayshunnal institutions.

  15. Imagining, Nay, Even INNOVATING, The Open ToadMarch 22, 2014 at 10:34 AM

    Where would I, The Open Toad, be, without that majeekal comfort blankie that is TENURE?

    Would I, The Open Toad, be no more than an Imagining without that the majeekal comfort blankie that is TENURE permits, even encourages, those great Innovators we worship as Law Professors?

  16. Imagining, Nay, Even INNOVATING, The Open ToadMarch 22, 2014 at 11:00 AM

    More seriously, there are clear advantageous and disadvantages to the concept of tenure. The idea that it encourages "innovation" in any real sense is of course ludicrous.

    To whatever extent Ms. Areen is correct that such a thing as "innovation" in legal writing actually exists, it is a mild, milquetoast version of innovation. Nothing audacious or challenging.

    Now, where is tenure valuable? Look at Campos and to a lesser extent Tamanaha. Without tenure would they have faced subtle downgrades in evaluations etc. over the course of a couple of years and then have been eventually let go? It's certainly possible. I say to a "lesser extent" Tamanaha because while Campos chose the "in yer face firebrand" route, Tamanaha did not but instead confined his criticism to a more temperate tone. But he would still likely have been vulnerable. Or consider whether Campos would have felt safe using the firebrand route he did, without the safety of tenure - I doubt it (I would not, in his place). And I throw in with Tamanaha any others who are and have been for years openly critical of LS and support reforms; you could list 50 or so in this category (50 being still a small part of the whole of law profs). Even Windy-City-Prof-Who-Shall-Not-Be-Named has been openly critical of the LS cartel - but of course only for any school outside the top 10! You know, those lesser schools, certainly not YHSCCN.

    For that matter, one occasionally stumbles across an actual right-winger law prof. Believe me, they do actually exist, not quite as rare as unicorns, M&M Guys and Santa Claus. Would Eugene-and-company over at Volokh Conspiracy or even just plain old libertarian-leaning law profs feel free to publicize their views without tenure? My own law school was overwhelming liberal. In the words of my contracts prof, "We have one token libertarian - me. And one token conservative, who's a dinosaur they only keep around because he's got tenure".

    Tenure also permits abusive behaviour. The Windy-City-Prof-Who-Shall-Not-Be-Named and others, I think, would not imagine perpetrating their sleazy, pernicious attacks on anyone they disagree with, at least not in the way they do now, without the majeekal comfie blankie of tenure. Of course, the Windy-City-Prof-Who-Shall-Not-Be-Named would say his behaviour is no different than that of Campos.... he seems to be pretty good at deflecting and dodging.

    1. Tenure will not protect those who actually do challenge the orthodoxy. Ward Churchill was fired despite having tenure. Of course, the witch-hunters justified the firing by accusing Churchill—falsely—of "scholarly misconduct". But the real reason was political.

    2. Professor Churchill was not fired for anything so mundane as speaking his views or speaking truth to power or even for being intentionally inflammatory while doing so.

      He was fired for being essentially a walking breach of scholarship ethics. Pulling shenanigans like publishing articles under false names in small, obscure journals so that he could cite to them as support in his articles published under his own name.

      This is not fantasy, it actually happened and it was not an isolated incident - it was his M.O.

      You can pretend he was fired for his politics, and cling to your fantasies if you wish.

    3. The matter has been discussed extensively elsewhere. A jury too found that he was fired for political reasons rather than for any "breach of scholarship ethics". I'm not going to go into the details here.

    4. I think that Churchill's politics attracted attention to his misconduct. Under tenure, you can get away with unpopular popular views or outrageous academic misconduct, but not both.

    5. 1:18 p.m., how disingenuous to say "a jury found" without adding that this finding was completely vacated. Perhaps that's why you don't want to "go into the details here", hmmm?

      Faulty jury decision VACATED.

      Professor Churchill appeals that to the court of appeals, and LOSES.

      Professor Churchill appeals that to the Colorado Supreme court, and LOSES.

      Professor Churchill appeals THAT to the U.S. Supreme Court, who don't even want to HEAR it.

      Yeah, I'll say you don't want to "go into the details here".

      How intellectually dishonest can one be?

  17. Imagining, Nay, Even INNOVATING, The Open ToadMarch 22, 2014 at 11:03 AM

    "The comments we received were overwhelmingly in favor of [tenure]".



    "The comments we received from [insert name of benefit] recipients were overwhelmingly in favor of retaining [insert name of benefit]".

    - G.Pyle, USMC.

  18. I would be in favor of tenure IF salaries were commensurate with the actual market value of academics instead of salaries determined by cronyism and grossly-inflated senses of self-worth.

    Considering the perk of tenure and the guaranteed 20-25 hour mostly-unsupervised work week and the prestige of the position, the real market value of a tenured faculty member is maybe $50-75k/year.

    Unfortunately, hard salary limits were done away with, but I wish the ABA would strongly suggest that tenured faculty salaries be directly proportional to adjunct faculty rates. In other words, if your adjunct is getting 3k for a 14-week semester of 10 hours a week, your tenured faculty should be around 40-50k.

    1. How is that proportionate? A salary of $3k for 14 weeks of 10 hours each corresponds to a salary of $12k for 28 weeks of 20 hours each and to $27k for 50 weeks of 25 hours each. Even $40k, which is a hell of a lot less than law professors get, would be an overpayment, especially in view of the very cushy benefits that regular faculty members but not adjuncts receive. Tenure itself is a huge benefit that should be worth 20% or more of salary.

    2. To go along with 3-23-14 @ 12:13 PM:

      Where are you getting 25 hours?

      No hella way it's even near that for law profs. 6 hours per week of class time, with the usual 2-course load) and maybe - maybe - 4 hours office. More like 2. So 8 hours.

      8 freaking hours...

      Or 1/5th of a standard work week. At least for everyone else who isn't a worthless, leeching, pompous, arrogant, do-nothing academic.