Justice, Access, and For-Profit Law Schools
Anthropology of Policy
Published by: Stanford University Press
288 pages, 152.00 x 229.00 mm
- ISBN: 9781503603011
- Published: July 2017
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 presents the recruitment and training practices that fill the new institution with flesh and blood people. This chapter discusses New Delta School of Law's practices of recruitment of faculty and enrollment of students—its techniques for finding the human resources making up its organization. Through the use of various techniques, the school and its parent company generated and maintained managed precarity—a condition whereby teachers and students remain within its purview as employees and clients out of felt necessity more than elective choice. Chapter 1 argues that the operationalization of professional diversity through increased "access" to legal education permitted NDSL to forestall market discipline at a time when many expressed faith in the winnowing function of a legal education free market.
Chapter 2 gives readers a window onto the corporate "culture" of the proprietary law school. There, it argues that the unique law school culture of NDSL served to hold back community reflection on the moral hazard of for-profit legal education. Through structured repetition and reflection, faculty and staff were taught to embrace the ideology of access rather than dwell on their underlying business model—one that generated millions of dollars annually in "subprime" student debt and transformed them into off-site investor returns.
Chapter 3 describes the feverish growth of the school in the years following onset of the Great Recession. This sudden growth, leading to logistical problems inadequately prepared for, had immediate effects on the 450 new students brought in as first years in 2011. Nevertheless, as this chapter argues, difficulty meeting investor obligations—rather than any great concern for logistical or pedagogical limitations—would quickly impose a limit to this large burst of entrepreneurial expansion.
Chapter 4 argues that Legal Education 2.0's emergence had less to do with substantive improvements for law student learning than with pacifying investor fears about the new "crisis" in legal education. Under new professional realities, fourth-tier law schools had to reinvent themselves or risk dissolution. Law Corp, fearful of the investor call on its capital, ordered each of its three schools to develop a new curriculum. At New Delta, the result was a campaign for integrating curriculum soon labeled "Legal Education 2.0."
Chapter 5 moves from reinvention to survival. It describes in detail how school administration conducted and mediated faculty deliberation and democratic ratification of the revised curriculum proposal. This includes a retelling of the unique manner in which the reforms were ultimately passed and the direct impact this had on governance, academic freedom, and basic feelings of respect and dignity among students and educators in this unique environment. Above all, it suggests, Law Corp officers succeeded in confirming a marketable reform agenda by framing the debate as one between tradition and innovation.
Chapter 6 describes how this fiscal "state of exception" changed the structure of school governance by altering the terms by which employees were retained. That shift, from customary to contractual security of position, situates this story within the larger context of neoliberal governance and legal culture. On one hand, academic employees were asked to expand their duties into business development. In one notable episode, NDSL sent several professors to Botswana to establish ties with the national bar, train judges and attorneys in common law jurisprudence, and develop this as a new income stream. On the other hand, with threats of a "reduction in force" in the air, NDSL revised its faculty employment terms, resulting in a conflict with and ultimate termination of tenured senior professors. Amid this information's rapid spread on social media, students flew into a panic and began requesting letters of recommendation to transfer out in record numbers.
Chapter 7 argues the regulatory frameworks governing schools like New Delta have been greatly shaped by the rhetoric of student access. Accepting school officials' narrative that the main hurdle to professional diversity is becoming a lawyer, the scrutiny of key regulatory actors—here the Department of Education and the American Bar Association—has been unable to properly grasp the potential harm for-profit law schools are liable to generate. In other words, these schools may not only produce substantial moral hazard, they may also promote the transmission of moral hazard to a new generation of would-be lawyers often rendered as "officers of the court."
The conclusion recaps the book's main themes to reassert its two core claims. The first, directed at legal audiences, says that differentiation by marketization—by exposure to the disciplinary power of free markets—is likely to exacerbate professional inequalities. No longer just a theory, this form of differentiation is indeed already on display at New Delta and its sister schools. Thanks to rollbacks in oversight prompted by both antitrust litigation in the 1990s and regulatory capture in the 2000s, the ABA's relatively hands-off approach to for-profit law programs has allowed them to recruit a diversity of students more freely while offering them a different educational program. As my informants describe, these students enter a local profession that already stigmatizes them for this pedigree.
This chapter introduces Law Mart, an ethnography of for-profit law schools, as a contribution to the anthropology of policy and contemporary legal education crisis and reform debates. It explains the recent historical background to the study in a period of significant "boom and bust" in the law school and legal services sector. The chapter situates this intervention among social studies of legal culture, profession, and education. The introduction then offers the book's two core claims. One, directed at legal audiences, says that differentiation by marketization—by exposure to the disciplinary power of free markets—is likely to exacerbate professional inequalities. The second, directed at anthropologists, underscores how the metaphor of the "market" has come to occupy the imagination of so many, reformers included, in American academic law.
"Law Mart is a compulsively readable and dark tale of a for-profit law school. The school's stated mission is to provide 'access' and 'innovation' to underserved populations, admitting students with low scores and limited options. Out of sight of students and accreditors is a corporate operation that uses emotional intelligence testing for employees, implements curricular reforms to satisfy nervous investors, and fires and intimidates professors who object to changes they perceive as detrimental to the students. This compelling book raises serious concerns about the permeation of economic imperatives in academia." ~Brian Z. Tamanaha, Washington University School of Law
"Riaz Tejani regards legal education as integral to the democratization of the legal profession, and to democracy itself. Written from that critical starting point, his account of the blurring of public and private interests in for-profit law schools is both searing and subtle – relevant and accessible to anyone interested in higher education, law and contemporary liberalism." ~Carol J. Greenhouse, Princeton University
"Law Mart offers an extremely insightful and smart analysis of for-profit law schools. Tejani's book is a must-read for anyone who cares about the future of the legal profession and its aspirations to make legal education and access to justice a right for all. Given the current conservative political climate of deregulation and laissez-faire capitalism, this book's importance takes on new meaning and significance." ~Eve Darian-Smith, University of California, Santa Barbara
"Tejani's skills as anthropologist and lawyer shine in this incisive account of U.S. for-profit law schools. With deceptive ease, his lucid prose moves us from analyses of the market and the economy, through morality and legal ethics, to deeply-rooted ethnography that takes us into the heart of a malaise in U.S. legal education. This book is a must-read for all those concerned about that malaise." ~Elizabeth Mertz, American Bar Foundation
"Tejani explores the tensions between law, economics, and morality when justice becomes a commodity and higher education is produced en masse. The book weaves narratives and data collected from research on one particular school's operations with analysis of the broader business model's implications across higher education." ~Harvard Law Review
"One of the great strengths of Tejani's book is that it is not a simplistic account fo the exploitation of students and academics by financiers seeking egregious profits. Tejani explores how students who would not have qualified for traditional law schools and who would not, on their own, have been able to navigate admissions and financing routes, were helped into law school by New Delta." ~Anthony Bradney, Journal of Law and Society
"This considered and timely study reveals that the attempt to absorb market-based thinking into higher education is fraught...Tejani shows insightfully how the move towards greater diversity within the student body in legal education is a direct outcome of neoliberalism rather than the manifestation of an increased sensibility in favour of social justice, as it is claimed to be.... In highlighting the contradictions inherent in for-profit law schools, Tejani poses the provocative question of how faculty can fulfill their responsibility of socializing students into ethical legal practice when they are implicated in producing a significant moral hazard....I highly recommend this excellent study as it addresses an issue of vital importance to all of us." ~Margaret Thornton, Canadian Journal of Sociology
"By exposing the fallacy of for profit legal education for what it is, Law Mart creates a compelling and absorbing narrative of legal education and the failure of oversight methodologies, and is a damning indictment not only of the industry but also the accreditors who claim to regulate it."––Andrew W. Jurs, St. John's Law Review