Law Mart

Justice, Access, and For-Profit Law Schools

Riaz Tejani

• Publisher: Stanford University Press
• Year: 2017
• ISBN:
  9781503603028
• Edition: 1
• Topic: Diritto
• Subtopic: Didattica in ambito legale

American law schools are in deep crisis. Enrollment is down, student loan debt is up, and the profession's supply of high-paying jobs is shrinking. Meanwhile, thousands of graduates remain underemployed while the legal needs of low-income communities go substantially unmet. Many blame overregulation and seek a "free" market to solve the problem, but this has already been tested. Seizing on a deregulatory policy shift at the American Bar Association, private equity financiers established the first for-profit law schools in the early 2000s with the stated mission to increase access to justice by "serving the underserved". Pursuing this mission at a feverish rate of growth, they offered the promise of professional upward mobility through high-tech, simplified teaching and learning.

In Law Mart, a vivid ethnography of one such environment, Riaz Tejani argues that the rise of for-profit law schools shows the limits of a market-based solution to American access to justice. Building on theories in law, political economy, and moral anthropology, Tejani reveals how for-profit law schools marketed themselves directly to ethnoracial and socioeconomic "minority" communities, relaxed admission standards, increased diversity, shook up established curricula, and saw student success rates plummet. They contributed to a dramatic rise in U.S. law student debt burdens while charging premium tuition financed up-front through federal loans over time. If economic theories have so influenced legal scholarship, what happens when they come to shape law school transactions, governance, and oversight? For students promised professional citizenship by these institutions, is there a need for protections that better uphold institutional quality and sustainability? Offering an unprecedented glimpse of this landscape, Law Mart is a colorful foray into these essential questions.

Chapter 1

Enrollment

Precarity, Casualization, and Alternative Admissions

“HE’S an anthropologist. He’s going to study us.”

I cringed when I heard this, as I had not yet turned to academic lawyers as an object of study. That would soon change. In the meantime, I was having dinner with future colleagues from New Delta School of Law. There, in a midpriced Mexican restaurant near the center of the city, just miles from the then-campus, I got my first experience of the people I would work alongside for three years. As part of the obligatory faculty recruitment ritual, they were there to learn my skills and etiquette as a conversationalist, debater, and evening diner. Those attending included a former state supreme court clerk, a former state trial court judge, a former corporate in-house counsel, and one alumnus of Yale Law School. We spoke about state immigration politics, international terrorism, and law teaching failures described in the Carnegie Report released a few years earlier.¹

The morning after, I gave a “job talk” about my long-term fieldwork on the European Constitution and its defeat in France. After I finished, one faculty member approached me—an older gentleman whom I later learned had sat on the local bench for many years. “Interesting talk,” he said, “but I’m not sure how it would benefit our students at all.” A second professor approached: “Nice work. I did PhD fieldwork in Russia, but nothing as extensive,” she said kindly. A third faculty member then chimed in: “That was the most interesting talk we’ve had here.” One month later, I was invited to join the tenure-track faculty the following fall. The offer came just in time—I accepted the position from a laptop in a postpartum recovery room a day after the birth of my first child.

Precarity is a powerful force in today’s world. It inspires young families to accept work in new places and move across state lines. It permits employers to maintain a docile labor force. And it promotes students to seek out further education and remain loyal to “predatory formations” in higher learning.² In this chapter, I discuss New Delta’s practices of enrollment and recruitment for both faculty and students—quite literally its techniques for finding the human resources making up its organization. Through the use of various techniques, I will suggest, the school and its parent company generated and maintained managed precarity—a condition whereby teachers and students come to remain loyal employees and clients out of feelings of insecurity more than elective choice. This builds on recent theoretical writings on precarity as an immanent condition of contemporary global capitalism as it migrates further away from the values of Western social protectionist movements.³

As philosopher Richard Gilman-Opalsky points out, discussions of precarity that fail to specify its precise conditions can undermine the critical efficacy of this concept. What is needed, he says, “is to distinguish different forms and causes of precarity.”⁴ Therefore managed precarity, it should be said, is a milder version of the conditions experienced by the global dispossessed and displaced, but it captures the local instrumentalization of similar forces among late modern business enterprises aimed at maximizing “shareholder value.”⁵ It is a tool for creating organizational coherence in institutions or businesses of moral instability. This, in turn, serves what Emile Durkheim famously called “organic solidarity,” a “modern” form of cohesion that binds separate actors through a division of labor to succeed or survive.⁶ Like organs in a body, the disparate actors work in increasingly specialized ways to assure the functioning of the whole. This description captures what modern-day corporations were becoming by the turn of the twentieth century when Durkheim was writing.⁷ Corporations, with their different departments, hierarchy, divisions of labor, and so forth, are highly specialized groups. Although Durkheim viewed them as organic solidarities par excellence, some corporations in recent years have returned to a more mechanical form of affinity through the use of mission statements and benefits packages that stylize their employee identities as “in and of” the company itself. In high-tech companies like Google or Facebook, for example, employees’ sense of self may be rooted in the unusual lifeworld created by the new management approaches and working conditions (for example, casual dress code) of these organizations.

But, for other companies, particularly those controlled by private equity funds designed to quickly leverage company holdings for fast turnaround and sale, identity formation among human resources may be too expensive and unjustifiable to shareholders.⁸ Instead, of greatest value to equity investors may be the fungibility of both workers and clients, understood in the context of proprietary higher education as faculty and students, respectively. Schools like the University of Phoenix, a publicly traded for-profit, hire few permanent faculty and instead rely on “practitioner” adjuncts marketed as teachers of the latest industrial skill sets. New Delta, as an ABA-accredited law school, could not follow this faculty model. It had, instead, the quandary of maintaining an obligatory, permanent, tenure-line faculty while hoping to attain for investors the benefits of employee fungibility. It resolved this tension, I suggest, through managed precarity.

Untapped Markets

When New Delta opened its doors in the mid-2000s, it was to join a stable of Law Corp proprietary schools in emerging markets. Law Corp management, along with outside consultants, conducted extensive research and determined that several metropolitan areas across the United States had unserved legal education markets. But these new programs were not the first in their jurisdictions. Market researchers had determined that extant law schools in the area were too selective for most of the students hoping to become attorneys there.

Until that moment, this selectivity had been considered by most legal professionals a good thing. It assured everyone that only the best of applicants were being admitted to study and eventually practice. In traditional law school admissions terms, the extant JD programs in the jurisdiction took in only students who scored around the seventy-fifth percentile of all LSAT takers. This, in turn, assured the public, consumers of legal services, that the law degree from Big State School of Law, for example, could be read as some assurance of quality. It also assured that students were admitted for only the right reasons. Federal student loan money could be readily secured by anyone accepted and if schools were in the business of generating the greatest revenue, they might have had an incentive to open admissions criteria to those likely to fail or unlikely to pass the bar.⁹ Selective admissions criteria also helped assure that the existing law schools in the state remained well ranked under the universalizing hierarchy of the U.S. News & World Report ranking system. Whereas many have recently criticized those rankings and the gamesmanship carried out by several schools in pursuit of ascendancy therein, these rankings—and constituent student selectivity—have remained at least some general indicator of bar passage and reputational strength among legal professionals.

Even under such national restraints on admissions, the number of attorneys in the United States still grew during this period at a rate roughly double that of national population growth.¹⁰ Nevertheless, as the need for legal services grew with the state’s population, one emerging paradox was a disparity in access to legal services for rural and urban poor.¹¹ This was not unique to the state or area surrounding New Delta or other Law Corp schools. Across the United States, low-level legal tasks such as wills, divorces, bankruptcy, and so forth were becoming out of reach for many people for reasons of cost and geography.¹² Meanwhile, attorneys interested in conducting these types of services were increasingly limited by the growing size of student debt upon graduation. New graduates, already heavily attracted by jobs at high-paying corporate firms that did the most to train them in legal practice, were now even less motivated to open a solo firm in a poor urban or rural area.

All of this established a distinct problem of “access” within the legal community. But the question remained, “access to what?” exactly. Already, nonprofit nongovernmental organizations such as the Southern Poverty Law Center or Public Counsel, to name just two, had long catered legal services to marginalized communities. Staff attorneys at these organizations were indeed some of the brightest from high-ranking law schools; on recruitment, they became eligible for a variety of student loan relief programs that would offset opportunity costs for graduates not entering corporate law.¹³ Attorneys in such positions have reported some of the highest career satisfaction rates of all working lawyers. If these organizations have been relatively successful at channeling law professionals into needed social justice positions, why not simply open more of them?

The answer lies in the interaction of private business and public finance illustrated by this story. Entities like Law Corp’s parent fund, one I will call Venture Partners Group (VPG), entered the law school business to generate revenue for off-site investors. They discovered, much like the University of Phoenix before them, that the federal government was willing to provide easy credit for students to enroll in accredited higher education. Whereas UOP had long since captured the market for undergraduate education, the law school market was only recently opened up for financialization under new accreditation policy following a historic lawsuit against the ABA.

The case began in 1992 when the Massachusetts School of Law at Andover (MSL) sought national accreditation. Although a nonprofit entity, MSL had created a model of faculty engagement and pedagogy that strove to keep overhead costs low.¹⁴ It used primarily practicing lawyers as adjunct faculty and put students to work on real cases, thereby maintaining low faculty salaries.¹⁵ Unfortunately for the school, these practices created, among other things, a student–faculty ratio well in excess of the ABA maximum at the time.¹⁶ On denial of its accreditation bid, MSL filed an antitrust claim against the ABA, which, although ultimately a failure, sparked an investigation by the Department of Justice (DOJ), which then filed its own suit in 1995. In its complaint, the DOJ alleged a number of “anticompetitive standards and practices” including, among other things, fixing of faculty salaries, unnecessary exclusion of graduates from non-ABA law programs, and, most importantly, summary elimination of proprietary law schools from accreditation consideration.¹⁷ Early in the case, the ABA entered a consent decree accepting responsibility for many of the alleged practices and offering to remedy these.¹⁸

So the opening of ABA accreditation to for-profit law schools signaled an opening of access to vast public resources for private business. Law Corp, realizing the significance of this access, likely also understood that it might have difficulty selling the idea to equity investors more accustomed to investing in distressed commercial entities. Perhaps to overcome the dubious appearance of the business model, the company developed its systemwide “mission pillars” (see Chapter 2). Common among these is an implicit but clear mission to increase access to legal education and, by extension, access to legal services and access to justice.

Springdale School of Law

At its opening in the mid-2000s, New Delta was initially labeled Springdale School of Law,¹⁹ after the city in which it was located. At that time, Law Corp officers hired a team of approximately a half-dozen legal educators and retired judges to build the faculty and curriculum for the school. The program began in a strip mall in a wealthy area of the city. Its founding dean was also a senior vice president for Law Corp who had taught at several low-ranked ABA schools and authored several casebooks. Within a few years, educators from other institutions such as Gonzaga, St. Mary’s, and St. Thomas were recruited to help bolster the legitimacy of the program.²⁰

The first dean touted the Law Corp schools as “fixing” what was wrong in legal education. As he described it at the time, “It’s student-centered, it’s very community-connected, and multiculturalism is the norm rather than aspiration.”²¹ This focus on student centeredness would remain with the institution throughout its growth. But the interest in multiculturalism, perhaps because of the ideological sound of the term and relatively conservative bent of the community in which the school was situated, was later dropped in favor of a more amorphous phrase: “the underserved.”

The school graduated its first students in its third year of operation. That first group numbered only thirty-four and included both full- and part-time students, many second-career professionals, or those with daytime jobs throughout their studies. Over the next few years the class sizes grew, and the school hired more faculty. In several cases, faculty initially hired to teach “lawyering process”—known elsewhere as “legal research and writing”—were revetted through the hiring process and transitioned to teaching legal doctrine.

Faculty Recruitment

The law teaching “market” is highly unusual both as an employment marketplace in general and an academic employment marketplace in particular. Technically there are few set requirements for teaching in a law school other than the possession of some advanced degree. Although at many schools the JD is required, at a number of well-respected programs faculty teach with only a PhD in a related field such as politics or legal history.²² Today, with a slump in hiring among the largest law firms—ones formerly responsible for training new graduates in actual practice capabilities—schools are under pressure to hire professors who can teach legal skills courses. Notwithstanding this recent development, law school faculty hiring in years past was surprisingly disjoined from one implicit aim—training new practicing lawyers—of legal education. Hiring committees were more likely to call back elite graduates with one well-placed esoteric published article than they were a seasoned litigator trained at a midlevel law school. Hiring practices also differed considerably from those found in the social sciences and humanities, where extensive portfolios showing research, teaching, and grant-writing prowess are routinely required.

For its first few years, New Delta recruited faculty through word of mouth, local advertisements, and professional networks. Most of the founding faculty were from the local community around Springdale. But, as the school expanded and approached i...