Preface

Can deregulated markets solve complex social problems? That may be the underlying question of the text you are reading. The problems in this story relate in particular to the pursuit of justice. One is the problem of “access to justice” defined by many as the inability of millions of poor and middle-income people in America—for reasons of cost and geography—to obtain adequate legal representation.

Another is the “crisis” of the legal profession—a predicament associated paradoxically with a glut of new lawyers relative to legal job openings, and the reportedly high demand for affordable legal services among many communities. This problem is nowadays explained by a theory of “structural change” wherein corporate fiscal austerity, high-tech services like LegalZoom, and the birth of new career niches such as Washington State’s Limited License Legal Technician have combined to reduce demand for traditional legal work. Although there has long been talk of a lawyer overabundance, the structural change thesis describes an irreversible exacerbation of that.

And finally, the “crisis” of legal education forms a third key problem to which the market has been a proposed solution. Law schools are now soul searching about the moral, economic, and pedagogical values they have long espoused. Although professional readiness is one object of that introspection, a more important one may be the moral hazard law schools have generated over the years by raising tuition while focusing less and less on students. Charging students exorbitant fees to learn many things other than legal practice might have been a palatable approach if information about this had been readily available and if the buyer could indeed beware. The problem was that, until recently, this was not the case. That lack of information has since been lessened by the courageous and principled works of writers like Elizabeth Mertz and Brian Tamanaha. Mertz’s study of moral distanciation in law school language and learning opened our eyes to the social costs of reproducing “thinking like a lawyer,” whereas Tamanaha’s insider account of law school governance, accreditation, and faculty incentives spotlighted causation behind the explosive growth in tuition and, in turn, career-limiting student debt loads.

If these have been the problems, a more open market has lately been posited as the best solution. More importantly, this approach has been endorsed or accepted by many of the sharpest minds in American legal education and legal profession today. Like the antiseptic qualities of sunlight, they seem to say, the competitive context of an open market should winnow out weak, underperforming players. Good law schools, in other words, will simply push out bad ones. For this to occur, several have said, a true market needs free rein. Regulation, in this case most proximately by the ABA Council of the Section of Legal Education and Admissions to the Bar, needs to roll back or step aside. Freed from the Council’s strict Standards for accreditation, some say, law schools will be better able to compete, innovate, specialize, and above all, differentiate.

Given the regulatory opening to cut costs, schools will offer cheaper services, charge less, and attract students interested not in the prestige and high tuition of high-ranking established research schools, but rather in the simple, practical skills needed to “hang up a shingle.” Such students, many hope, will include those from groups historically marginalized within the legal profession—ethnoracial and socioeconomic minorities.

Differentiation of this kind, reformers say, will solve the three problems just mentioned. Originating from diverse communities, graduates will “return home” to offer the kinds of legal services—wills, divorces, criminal defense—that their communities “need.” Servicing those needs, new graduates will then ameliorate the access problem. Applying their skills in dispersed areas of high demand albeit lesser pay, graduates will evade the structural change dilemma. And by patronizing new, innovatively streamlined curricula, students will support the renewal of legal education.

But, according to available evidence, the impact of this model is more complicated. Differentiation by deregulation has partially occurred among American for-profit law schools. Once allowed accreditation for the first time in the ABA’s century-long history, for-profit law schools studied and adopted many of the legal education reform proposals offered by key studies like the McCrate and Carnegie Reports and advocated by legal education reformers, suggesting what students needed was more skills and less “knowledge” of the law. Taking these seriously, law schools like New Delta School of Law (NDSL), described here, promised to offer students a more practical skills-based curriculum while spending less on faculty and hiring many off the tenure track. Support for research was minimized, and, rather than working paper symposia, professors were offered bimonthly teaching workshops. The whole thing sounded more student friendly.

But when their bills arrived, most students were paying more to attend NDSL and its sister schools than the neighboring ranked public law school programs. Students noted periodic dress code warning emails from administration announcing the presence of mysterious “visitors” on campus. These visitors, I would learn through this research, included representatives of venture capital firms, including Warren Buffet’s famous Berkshire Hathaway, ostensibly on the market to acquire a law school franchise. For many, the school was up for sale and tuitions would remain high to reflect well on auditor balance sheets.

As this book explains, NDSL is one of the more advanced cases of law school “differentiation” available. The institution combines the ideals of social inclusion with simplified pedagogy and reduced fixed costs. Yet under the for-profit model, savings from austerity are not to be passed on to students in reduced tuition. Financed by private equity capital in exchange for promises of high rates of return on investment, savings created by differentiated law teaching go to offsite investors.

And, according to the ethnographic evidence here, students, faculty, and staff are aware of all this. On one level or another, they understand that a greater chunk of the surplus value they created is being taken “out” of the school to benefit others elsewhere. The question—one that journalists writing about for-profit education and for-profit law schools in particular are unequipped to answer—is how and why these people stay. What motivates them to teach or matriculate in these environments even in the face of public criticism and skepticism? What keeps them coming in each day despite recurring announcements about declining enrollments, program austerity, and falling student outcomes such as bar passage and employment rates? What does prospective failure mean to people so preoccupied with professional success? Describing my three fraught years embedded in this environment and imbricated with the lives of these flesh-and-blood people, these are the questions this book hopes to answer.

R. T.