Legal Commentary

A few months ago, I noted (here) the proposed revisions to Chapter 3 of the ABA's law-school-accreditation standards regarding "student learning outcomes."  And, in the course of trying to learn more about the proposed revisions, I came across this submission, from Prof. Andrew Horwitz (Roger Williams), to the ABA.  Prof. Horwitz writes, among other things, that:

. . .  A genuine and meaningful move in the direction of outcome measures is both time-consuming and expensive.  In the absence of enforceable regulations, all that is left is a leap of faith that law schools and law school faculties will move in the direction of outcome measures simply because the ABA thinks it is the right thing to do.  We know from history that this leap of faith is entirely unjustified. 

The vast majority of law school teachers who presently engage in teaching that focuses on outcome measures fall into two categories: clinical teachers and legal research and writing teachers.  Until the ABA began to enforce regulations designed to encourage reasonable treatment of these two categories of teachers, law schools behaved miserably. . . .  The only progress that has ever been made in forcing law schools to recognize the importance of this kind of teaching has been made through the ABA regulatory process, usually with law schools and law deans kicking and screaming.

Despite that clear history and track record, the proposed approach would assume that law school faculties, controlled by tenured faculty who are accustomed to doctrinal classroom teaching that uses a single examination at the end of a course as the only outcome measure, will somehow embrace a new world and a new philosophy.  To expect a cohort of people who are quite entrenched in their behavior to gladly move toward a regime that will require them to acquire new skills and to spend much more time providing feedback to students simply defies our common experience.  It will not happen without clear and enforceable regulations. . . .

Now, my own views on the proposed revisions (and, I think, on the general project of using the ABA accreditation process to regulate excessively the educational programs and practices of law schools) are closer to those expressed in this memo, from the American Law Deans Association, than they are to those of Prof. Horwitz.  It seems possible to me that one reason faculty and deans might not "gladly move toward a regime" of the kind that Prof. Horwitz wants the ABA to impose is because those faculty really do think not only that ABA micro-management of law schools is unhelpful but also that (i) this move would yield no real benefits to students while (ii) imposing substantial costs to the educational and scholarly mission of law schools (and, therefore, on students, the academy, and the profession). 

Putting that aside, though . . . I found the sharp, "us v. them" dichotomy that Prof. Horwitz's submission seemed to presume, and the image of "entrenched", self-interested, stick-in-the-mud, protected-by-tenure, all-about-doctrine faculty, kind of, well, sad.  It would be a very bad thing indeed if the dichotomy really were so sharp (I don't think that it is), but it is also a bad thing if well meaning and dedicated people think it is so sharp.  What can be done?