key: cord-0058315-d13sydxf
authors: Tejani, Riaz
title: Legal Education for Profit and the United Nations Call for “Quality Education” and “Strong Institutions” in the 2030 Sustainable Development Agenda
date: 2020-07-23
journal: Crime Prevention and Justice in 2030
DOI: 10.1007/978-3-030-56227-4_22
sha: f7810162ec69b50b57a04aac40baeda157aae88b
doc_id: 58315
cord_uid: d13sydxf

The United Nations 2030 Sustainable Development Agenda calls for “quality education” and “strong institutions” in Goals 4 and 16. This call underscores the supreme importance of the rule of law in global perspective by construing law as both constitutive of social institutions and a fundamental institution in its own right. In both capacities law historically has acted to buffer public goods and vulnerable populations from the vicissitudes of market supply and demand. For this reason, law schools—where we teach and train most new lawyers and judges—have been a particularly sensitive kind of institution. Yet, during the 2000s the West saw the rise of “for-profit” law schools—institutions of legal education and scholarship newly created with the mission of commercial gain, sometimes for the benefit of outside investors or investment “funds.” What effect might this historical turn have had on law and its practice in the twenty-first century, and what does this say more generally about democratic ideals in the West during this period? For instance, that for-profit law schools emerged simultaneously with the major accounting and banking scandals of the decade may be no coincidence. This chapter argues, therefore, that the rise of for-profit legal education was a symptom of changes in U.S moral economy, and in the social and political climate of the West more generally. Namely, this development points to an emerging conception of law as primarily in the service of economic rather than social life.

The rule of law starts at home. After decades spent arguing that the nations of the Global South must strengthen their legal institutions, countries in the North are realizing how fragile the rule of law may be in their own backyards. Systemic examples of this abound in recent cases of armed trespass of government buildings during the COVID-19 emergency (Graham 2020) , juvenile migrant detentions (Jordan 2019) , government corruption reports (Schmitt 2019) , and international election meddling (Hulse 2019) . But more subtle examples may be equally consequential.

When it comes to the rule of law, the educational institutions that prepare lawyers and judges for civil service and private practice can be just as important as any state apparatuses in a democratic system. Jurists 1 are the main architects of civil society in these systems. They carry on intergenerational transfers of legal knowledge. They develop and refine the tools of legal interpretation. They advocate for the needs of individual disputants who, especially in common law systems, drive legal change in market-like fashion. They occupy a majority of positions in many national and regional law-making bodies. And they produce a disproportionate share of executive leaders at all levels, including the supranational level of governance so important under globalization.

That said, the integrity of law schools around the globe is vital to the operation of democracy. In most cases, legal educators have been aware of this vitality and maintained the political and fiscal independence of their institutions from government, political party, and market demands. Law schooling for profit, in particular, has been particularly uncommon even in global perspective. A fair generalization across historical and geographic space would be that the institutions of legal education have, by and large, operated on a nonprofit basis-and often as public institutions without any private sector funding or entanglements. To put it more simply, across the legal systems of the world, there seems to have been tacit consensus that "making money" off training the professional guardians of justice is undesirable.

It is for these reasons that the emergence of for-profit law schools in the United States before and during the global financial crisis of the 2000s was such a striking historical development. For nearly a century, US legal educators had frowned upon for-profit law schools and, indeed, chosen not to accredit any such programs. The concern was that the profit model would taint the mission, governance, and content delivery of these institutions, and by extension the legal profession to which they contributed human capital. Ultimately, for reasons discussed further below, the regulatory body overseeing US law schools changed course and allowed these organizations to take hold in certain key jurisdictions around the country. The results were, by and large, negative.

Drawing from roughly eight years of research into US for-profit law schools, I suggest in this chapter that the concerns about their integrity were well-founded. The rise of for-profit legal education in the USA was likely a key indicator of changes in US moral economy, and in the social and political climate of the West more generally. As I further suggest here, it highlights a key challenge for the United Nations call for "quality education" and "strong institutions" in the UN 2030 Sustainable Development Agenda.

2 Frameworks of Understanding: Access to Justice, Business Ethics, and Market Fundamentalism

There are three key interdisciplinary frameworks from which to approach the problem of legal education for-profit institutions today. In order of specificity, these are access to justice, business ethics, and market fundamentalism (or neoliberalism). The access to justice framework has been constructed out of several disciplines, although primarily it emerges from law and socio-legal studies. It starts from the key premise, one echoed in the UN 2030 Sustainable Development Agenda, that universal access to the institutions and processes of justice is a fundamental feature of contemporary democratic societies. Without this, justicewhich was aptly defined centuries ago in the Justinian Digest as, "the constant and perpetual will to render to each his due" 2 becomes only the province of the few. In cases where justice in society has been the subject of limited access, this has tended to favor the monied or propertied classes, as well as members of the hegemonic ethnic or racial group. Whatever the grounds for exclusion, this observation tells us something important about the concept of justice: to be most meaningful, it must be available to all. This sentiment may be echoed in the famous adage attributed to the American civil rights leader Martin Luther King Jr.: "Injustice anywhere is a threat to justice everywhere" (1963) . There is something essential about the universality of justice that renders partial or exclusive administrations of it suspect or attenuated. In the US legal academy, access to justice has only become a topic of considerable discussion among mainstream law scholars. In the work of Deborah Rhode, for example, socioeconomic class is the primary independent variable in whether or not US subjects are able to benefit from their civil right to legal due process (Rhode 2004) . But, she says, It is not only the poor who are priced out of the current system. Millions of Americans, including those of moderate income, suffer untold misery because legal protections that are available in principle are inaccessible in practice. Domestic violence victims cannot obtain protective orders, elderly medical patients cannot collect health benefits, disabled children are denied educational services, defrauded consumers lack affordable remedies . . . The list is long and the costs incalculable (Rhode 2004, p. 5). Why, then, are legal services priced beyond the reach of "millions" in the USA? On this topic, many have pointed to flaws in the American legal education system. At the national level, 3 to be eligible for government subsidized student loan funding for tuition and living expenses, the student must attend an accredited law school. Accreditation comes from one and only one body: the Council of the Section of Legal Education and Admissions to the Bar, an independent wing of the American Bar Association (ABA). Under US regulations, federal student loans can only be disbursed to students of accredited education institutions. The US Department of Education has, meanwhile delegated all law school accreditation to the Council. The Council has promulgated an elaborate but clear rulebook setting minimum standards for all law schools seeking accreditation or reaccreditation.

Those rules require minimal services and facilities for students. These have historically included things like a physical law library, a prescribed student-faculty ratio, and a prescribed ratio of tenure to non-tenure line faculty. Such offerings represent expensive "fixed costs" that demand resources to maintain. Schools, it is said, must therefore keep tuition prices high, irrespective of student employment and income results. For these reasons, many critics have blamed the accreditation regime for the high cost of legal education.

Yet, despite the strict national standards expected, some law schools cost significantly more than others. One reason for this is the pursuit of prestige and rankings dominance. In the USA, the most revered law school ranking authority is US News and World Report. Its methodology for determining rankings positions considers soft factors such as "reputational score" assigned by members of the profession. These also depend upon things like faculty publication and citation counts. In short, The US News rankings can be manipulated through substantial expenditures by the law schools to incentivize faculty and administrative activity that boosts the school's standing in ways unrelated to the delivery of education to students. These expenditures, as well, are passed on to students, especially by schools without deep endowment funds. They also might take resources away from student offerings such as practice skills training, academic support, and professionalization. Aware of this, some scholars have advocated for law schools to revise their programs to better train "main street lawyers"-or attorneys better prepared to practice for the needs of ordinary citizens (Herrera 2013) .

The for-profit law schools that emerged in the United States found themselves right in the middle of these debates about access to justice. Disallowed for most of the twentieth century, for-profit law schools followed a business model that extracted surplus value from faculty, staff, and students for the benefit of shareholders off site. This extraction resulted in more austere course and clinical 4 offerings. Furthermore, the national accreditation seal was a subject of concern insofar as it would allow students to bring federal student loan money to a private commercial entity. As history would bear out, the demographics of students in US for-profits schools were also somewhat unique. Their demographics were ethnically more diverse, included more working-class students, and admitted more applicants with low-end test scores and grade point averages. In turn, it was presumed, these students would go on to serve unmet needs by ultimately practicing law in minority and low-income communities, or by offering legal services on lower value, individual claims like landlord disputes or divorces. Teaching these students was an unusually diverse faculty with more ethnoracial minority professors than at most ABA law schools.

All this diversity was meant to produce lawyers who would practice law in minority and lower income communities. The for-profit law schools that opened in the 1990s and 2000s spent considerable effort studying the markets of growing metropolitan areas and found that legal needs among these communities were going unmet in US states like Arizona and Florida. These were, not coincidentally, regions that had seen some of the largest in-migration and housing construction booms in the period before the global financial crisis of 2008.

The new law schools also aimed to fulfill a growing demand in legal education to teach students "practice-ready" skills. The erstwhile dominant model in American law schools had been to teach students using the "case method" that saw large groups learning in lecture halls in between long assignments reading case excerpts in thick textbooks. The students in class would be questioned on their understanding and retention of details from these cases dissected in almost anatomical form. The professor would engage particular students each session in a "Socratic" style of dialogue, and this would sometimes take students entirely by surprise in front of the large groups of peers in the class. As the most common model of American legal education, this created a style of learning that was elliptical, abstract, stressful, and adversarial. Critics of this model for legal education argued it followed the "appellate" practice model of legal profession, but bore little resemblance to the main practices of everyday lawyers-practices that often entailed completing forms, filing motions, and trying to consult sympathetically with clients in trouble. In the early 2000s legal education experts began calling for a "practice-ready" form of training that would see students trained more in the mundane tasks of law practice, and in the soft-skills of human-to-human contact necessitated by the negotiation and settlement process by which most legal cases come to be resolved in the United States system. Indeed, 4 Law school education is delivered both in the classroom and through clinical education. The more well-funded a school, the better its clinical offerings are. Clinics are a venue for students to gain hands-on experience in casework on specific theme areas. They require lower faculty to student ratios and are therefore considered very expensive. that process is crucial to allowing the justice system to operate smoothly when it would otherwise be flooded to a halt if every case were adjudicated to completion.

In short, the new law schools opening under a for-profit model responded to very real needs in the legal marketplace and enjoyed market conditions that were extremely favorable to their stated mission. They hired several legal education critics as early consultants on curriculum development, and they maintained extra financial support towards faculty who made classroom innovation a centerpiece of their research. The idea was that the for-profit law schools alone were poised to reform legal education, and that such reform was essential to improving access to justice on a national scale. They also argued vigorously that they offered a unique "value proposition" to those wanting to become attorneys but shut out from more traditional law school admissions.

These representations about value raise a second major theoretical frame through which one might view this sector. For decades, the field of business ethics has brought together moral philosophy, applied ethics, business management, and interpretive social sciences to consider the array of ethical duties and performance qualities of commercial organizations. In many senses a response to numerous periods of abuse and scandal in corporate and industrial life, business ethics has now become an integral component of the management curriculum in Western business schools. It effectively asks about, "issues that arise out of the relationships and activities surrounding the production, distribution, marketing, and sale of goods and services" (Vaidya and Allhoff 2016, p. 2) . The application of this framework to higher and professional education contexts is, of course, new. That is because for-profit education only really took root in the United States after the onset of the information economy and advances in online distance learning. Today, with numerous cases of fraud and financial misfeasance among for-profit institutions of higher education, these schools have become a prime example of the demand for better understandings of business ethics. Where the commercial goods or services are closely related to sensitive "public goods"-as in healthcare, security, natural resources, and education-the need for ethical standards and leadership may be at its very highest.

Business ethicists usually begin their observations with a set of clear ethical frameworks. While these can include nonwestern sources such as Confucian or Islamic moral principles in commerce, they more often begin with a portion of the Western philosophical canon. The three most common of these are utilitarianism, Kantianism, and virtue ethics. Developed most prominently by Bentham and Mill, utilitarianism asks about the consequences of any moral action and suggests a course of behavior that favors the "greatest good for the greatest number" of a moral community-however that might be defined. It is subject to considerable parsing when one explores the differences between Bentham and his student John Stuart Mill, but the general picture of a cost/benefit approach can be easily contrasted to the moral philosophy of Kant. Kantian business ethics are deontological in nature meaning they attend only to duty rather than consequences, and suggest in short that an action is "right" if it creates a universalizable rule that the actor would feel comfortable living under. Finally, virtue ethics asks whether the action in question helps to edify the actor to be the best person-or organization-it can be. From Aristotle, it defines "best" in terms of ideal forms, and considers the ideal human form to be happiness or eudaimonea.

Each of these three frameworks has been substantially revised and commented on so that any critical commentary here would only service a strawman argument. Taking these at their most nuanced, each has offered something important to the development of theory in business ethics. By far the best example of this is in the theory of "stakeholder" value in corporate social responsibility, or CSR. The CSR model propounded by Milton Friedman had said business exists solely to profit its owners-be they sole proprietors or thousands of public shareholders. But in the wake of considerable abuses seen through the 1970s and 80s, R. Edward Freeman proposed a "stakeholder theory" in which non-owners also have important claims on the proceeds and well-being of commercial activities of their organizations. These included the customers who may depend on products for safety and health, suppliers who rely on good business practices to keep their obligations to their own constituents, and of course employees who in a real sense sacrifice their capital to benefit the corporate collective and are represented by its brand. Stakeholder CSR can be justified based on all three of the above ethical frameworks. More importantly here, it has a direct bearing on the analysis of for-profit legal education.

The law schools described here operated as "closely held" or private equity owned commercial entities. They did not have public shareholders in the common sense of that term. But, they did have a narrow group of owners who profited by extracting surplus value from faculty and staff labor. Moreover, their particular profit drew from a source of public financing made available in the United States by a public commitment to higher education that gave students low-cost loans to boost their human capital on the understanding that this would be easily paid back after the higher credentials were attained-in law especially. From this description alone one realizes the very complex web of stakeholders beyond the small group of owners. The general public subsidizing student loans, the students incurring massive amounts of debt to better themselves, and the legal service client public who would ultimately depend on the new graduates for help were just some of the uniquely important stakeholder groups brought together in the context of for-profit legal education.

So in summary, a business ethics framework applied to for-profit legal education asks us to consider whether these institutions-even taken on their face as primarily commercial entities in the business of making money-may violate one or more of the key tenets of Western applied ethics. In the utilitarian sense, are they violative of the principle of doing the greatest good for the greatest number? In the Kantian sense are they practicing an approach that-generalized to the global population-would produce a world in which their own architects would want to live. In the Aristotelian sense, are their decisions amplifying human virtue?

Many would take issue with this line of questioning as, in itself, already too sympathetic to what for-profit law schools are doing to strong legal institutions in the West. The very notion that schools of higher or professional education could be considered as "primarily commercial entities" runs counter to what many believe is the exceptional stature of education in general. Much like public goods such as clean air and water, these critics view education as a kind of sensitive public good as well; it is foundational to Western liberal democracies and something that really only benefits a society when distributed en masse. It has been responsible for measurable increases in quality of life in specific national cases, and it serves as the basis for an educated populace in participatory politics.

So, when institutions of higher education are commercialized in this fashion, they evoke a third conceptual framework identifiable as "market fundamentalism." This stands for the proposition that faith in free markets to govern social activity has grown so strong in some sectors that we erroneously trust it to regulate even the most sensitive public goods. Market fundamentalism has, no doubt, come to oppose most forms of government economic planning or regulatory oversight in matters of commercial significance which today covers most sectors.

The critique of market fundamentalism tends to be one levied by left intellectuals against what they consider to be the dominant liberal or neoliberal political economy developed and advanced by economics and law scholars most prominently at the University of Chicago after the middle of the twentieth century. However, the challenge to the "marketization of everything" is not particularly radical when taken in any broad political context. The government theorist Michael Sandel has raised this critique for decades in front of over 15,000 students in his undergraduate Justice course at Harvard University, and most European centrist political parties would have considered this part of their basic platform even after the neoliberal turn in continental politics.

The neoliberalization of the modern University, however, is the subject of its own intense scholarly reflection. Some have viewed it from the sociology of education to spell danger for "public pedagogy" or the unique responsibility to teach the general public about ideas critical to its self-governance and public participation (Freire 2018; Giroux 2011) . Others take a historical perspective on the role that broad access to higher education played in the development of postwar Europe and North America as industrial and technological powerhouses (Aronowitz 2000) . From both the sociological and historical perspectives, market fundamentalism applied in the higher education context represents a corrosion of the unique role responsibility universities and their administrations have had toward the public.

Understood through the three broad theoretical frames of access to justice, business ethics, and market fundamentalism, for-profit law schools impact the health of institutions both from within and without: they are themselves a kind of uniquely financialized institution, but they are also preparing lawyers to go out and serve the institutions of justice-courts, prisons, city and state governments, and the legal rules themselves. In discussions about access to justice, we see the important role institutions must play in guaranteeing individuals and minority groups the ability to know and utilize legal expertise to defend social, political and economic rights when they come under threat, which, under conditions of growing nationalism and nativism, appears more and more often. Yet frequently the protection of rights occurs not in the obvious channels of public law (e.g., constitutional, administrative, criminal justice) but rather in the individual pursuit of contract and injury claims more characteristic of private law. For-profit law schools in the United States claimed from the outset to promote access to justice in this private law sense, however, as the below sections will suggest, the devil is always in the details. Taking seriously their own objectives as commercial entities, these organizations also trigger the framework of business ethics-one that has developed richly over the past half-century to apply western moral philosophy to unique problems of corporate commercial activity. As will be revisited near the conclusion of this chapter, these institutions sooner or later failed under these standards. But finally, one can set aside business ethics entirely and still ask whether for-profit law schools were a wise idea simply based on their willingness to extend market logics to professional legal education in the first place. This larger critique of market fundamentalism encourages that we ask whether legal education was exceptional compared to other commercial activities, and whether the exposure of increasingly vulnerable law student populations (and in turn their clientele) to certain market forces was bound to cause harm from the very beginning.

A chapter aiming to extract lessons about the commercialization of professional education demands a broader contextual understanding of how that commercialization emerged. In this brief section, therefore, I want to briefly trace the development of for-profit law schools in the United States and compare their present actuality with those of two other countries.

The ABA accredited its first for-profit law school in the mid-1990s, yet this requires substantial qualification. First, for-profit law teaching and learning had existed long before there ever was an ABA, and certainly well before this body was charged with law school accreditation. Indeed, the very first dedicated American law school, Litchfield Law School in Connecticut, was a proprietary 5 institution founded in 1784 with the sole purpose of training new lawyers in the new American republic (Litchfield Historical Society 2019). Whereas the College of William and Mary had offered law courses as part of its "liberal education," Litchfield envisioned legal education as its own separate formality (Litchfield Historical Society 2019). This was significant against the backdrop of English common law training, particularly in the new colonies, because this tended to emphasize apprenticeship in existing law offices as the predominant mode of knowledge and practice training. Interestingly, Litchfield was founded by graduates and former instructors of Princeton University, one of the only Ivy League institutions in the USA not to have a law school today. It operated until 1833 and produced approximately 1000 attorneys in that period (Litchfield Historical Society 2019). Although a small number by today's standards, it is important to remember that the population of the new republic in 1833 was approximately only 13 million people, with only about 9% of that number living in cities (US History 2019).

At about the same time that Litchfield was winding down, another proprietary law school was thriving in Connecticut. The New Haven Law School emerged in the 1810s as part of a formal apprentice training program in the offices of Seth Staples who owned one of the more extensive law libraries in the country at the time (Yale Law School 2019). From the mid-1820s Staples' program-now under the leadership of his former student Samuel Hitchcock-began slowly affiliating with the local private university until 1843, by which time it finally merged with it to become the now-preeminent Yale Law School (Yale Law School 2019). It surprises many to learn that the nation's most prestigious and selective law program today began as a for-profit independent legal education institution-a fact that serves as a reminder about the significance of historicity.

The prestige of Yale is a unique product of the sedimentation of time and experience. But it is also the result of its near-primacy in the legal education landscape in the new American republic. On one hand, defenders of the new for-profits in the 2000s could have pointed to both Litchfield and New Haven as examples of the unfounded assumption about low quality ascribed to their subsector and business model. On the other hand, they could never viably claim they would follow a similar path given that education and professional landscapes had so dramatically changed as to prevent most new actors from attaining the same respect or competitive advantage. 6 Of course, even while sharing the "proprietary" label with Litchfield and New Haven, the for-profit law schools of the 2000s were financialized in a way that made them less subject to the frameworks of legal professionalization and more subject to the markets in for-profit colleges and universities characterized by massive online programs like the University of Phoenix or Corinthian Colleges, both of which faltered near the end of the Obama administration (2016) and one of which failed entirely due to mismanagement and regulatory discipline.

The very reemergence of proprietary law schools in the United States had as much to do with changes in the regulatory landscape as it did with any sudden need that these schools could fulfill. This landscape is defined primarily by the accreditation history of the Council of the Section on Legal Education and Admission to the Bar of the American Bar Association (Council). The ABA is a national body 6 UC Irvine is a notable exception; its law school was able to premier at 29 in the national rankings after only 4 years of operation. But its model was only marginally innovative in that it largely replicated the standard 3 year course of study on an expensive, research-oriented faculty model. For a good critique on this see Tamanaha (2012). gathering some four hundred thousand attorney members and another 3500 organizations in the United States. It comprises numerous "Sections" specializing in legal practice and research areas such as criminal law, civil rights, and international law. The ABA has issued the Model Rules of Professional Conduct and gives ethics opinions on professional conduct cases, it offers evaluations of judicial nominees up to the Supreme Court level, and it adopts positions on major legislation and national policy. Since 1923, the Council has been the main national accreditor of US law schools. Recognized as such by the US Department of Education, it has the sole authority to grant accreditation of the kind necessary for schools to receive federally financed student loans for study.

For most of its nearly 100-year history the accrediting body of the ABA refused to certify for-profit law schools. One reason is that attorneys in the USA have always struggled with their position as market actors especially in relation to other tightly regulated learned professions such as medicine and engineering (Tejani 2018) . Historically in the USA, from a time dating back to the US colonies, lawyers were under substantial suspicion from the citizenry (Tejani 2019). One of the ways the professional association countered this suspicion was by setting down ethical limits on the degree of commercial opportunism-for example rules against "barratry" or ambulance chasing they could engage in. The distaste for for-profit legal education, therefore, was an extension of this more general distaste for overt commercial ambitions. Although very different in form than the attorney who follows accident victims to the hospital as a way to acquire business, proprietary law schools were but one degree removed; they saw school business offices trying to enrich themselves off an otherwise "noble" goal to join the bar and serve the public-at least in theory. Another problem was that, later in the twentieth century, accreditation under federal Education Department rules allowed students to borrow unlimited funds to finance their professional education. This meant that, unlike in almost any other area of commercial borrowing, private and public lenders could offer relatively low-interest loans irrespective of the likelihood that those amounts would ever be repaid-that is to say irrespective of any particular law school success rates. So, for instance, a Yale Law School education was treated the same as a Thomas Jefferson School of Law education for lending purposes despite the vast difference in employment and income expectations graduates should have had. One additional consequence of accreditation in the United States has to do with bar admission. Because the US is a federal system, there are effectively two bars in every state: one federal and one state. These correspond also to two layers of legal authority and process: one federal and one state. In most of these state jurisdictions today ABA accreditation means that students can opt to take a state bar examination and gain admission in any of the other states in the country without having attended law school therein.

On the other hand, the absence of ABA accreditation did not mean a law school could not operate. In some regions, state bar associations approved local law schools to train attorneys and allow them to take only that state's bar examination. California remains the prime example where these state-accredited law schools not only existed but flourished. In some cases their graduates proved very successful in the local profession, and many of the California-only law schools operated on a for-profit basis. By and large, however, these programs were nearly an open-admission system and allowed non-academically qualified-that is to say practitioner-only-faculty to teach working students by correspondence or through evening classes. One result was an extraordinarily low passage rate on the state bar exam.

Members of the ABA leadership were aware of these types of problems and therefore kept for-profits from gaining accreditation at least until the mid-1990s. At that time, the ABA was in the midst of an anti-trust lawsuit under US federal law (dating back to the 1930s) to prohibit unfair business practices from monopolistic organizations. Rather than litigate against this lawsuit, the ABA agreed to a landmark settlement that would partially restructure its accreditation process. It was at this time that the Council of the Section of Legal Education was formally removed from the oversight of the ABA's main board of governors and given independence. It was also at this time that the Council agreed to change its rules to allow accreditation irrespective of business model. Henceforth, for-profit schools would be subject to the same requirements as non-profit law schools.

In short order, several for-profits were founded and submitted for ABA accreditation. One group of attorneys founded Florida Coastal School of Law in Jacksonville, Florida. Atlanta's John Marshall Law School in Georgia-which had operated without national accreditation since 1933-filed for accreditation. Also founded by an independent group of jurists, Charleston School of Law was established in Charleston, South Carolina recognizing that city's need for a local legal training center. Meanwhile, the non-profit Western State College of Law, originally in Fullerton, California since 1966, was sold to Education Management Corporation and converted to for-profit status. Finally, the Chicago-based private equity firm Sterling Partners purchased Florida Coastal and announced plans to open two more for-profit law schools. It founded the Infilaw System as a "consortium" to manage these three schools and opened Phoenix School of Law and Charlotte School of Law in short succession thereafter. By 2012, each of these six new, or newly reincorporated law schools had earned accreditation from the Council and was therefore able to take in federally-guaranteed graduate student loan dollars with few questions asked.

The students these schools tended to attract was, by and large, ethnoracially diverse and socioeconomically more precarious than your average American law student. On the one hand, that is because these programs directly marketed themselves to marginalized students. The Infilaw System, for example, maintained system-wide "mission pillars" across all three of its schools and required reiteration of these in faculty meetings once a month. Among these pillars was "serving the underserved"-a mission statement to literally cater to students historically left out of the legal profession and legal services. Much like in other metropolitan countries in the Global North, these communities are often ethnic minorities. In the USA, for example, African-Americans comprised roughly 13% of the total population in 2010, but only 5% of all attorneys (Tejani 2017a, n. 3) . For Infilaw, this underrepresentation was exactly what was meant by "the underserved." Importantly, socioeconomic class diversity was also an important feature that overlaid across the ethnoracial dimension.

But there was still, on the other hand, another component to the diversity argument. Applicants from these underrepresented communities tended to have, for important historical reasons, lower incoming "indicators"-meaning test scores and grade point averages. The historical reasons explaining this may be as deep as the history of race in America. Economists and historical sociologists have long pointed out the difficulty of an entire racial group to accumulate financial and cultural capital after beginning their experience in the New World as chattel slaves and remaining so for over three hundred years. Irrespective of this historical explanation, the current reality was that if the for-profit sector wanted to make it its mission to admit ethnic and racial minority students en masse they would likely have to maintain far lower admissions standards than the other accredited law schools; and this they did. Moreover, as the applicant pool narrowed after the financial crisis beginning around 2011, all law schools were forced to lower incoming indicators meaning, in turn, that the for-profit sector had to look even lower to maintain its income streams and meet financial projections.

Another subpopulation these schools tended to recruit was military veterans and law and enforcement officers. These groups were also the object of direct marketing efforts and this was for two very important reasons. First, US military personnel are offered a benefit under the G.I. Bill of Rights that allows them to accrue money for further education upon discharge into the civilian world. This was, indeed, the very same program that had launched the American higher education explosion after World War II. Today, it has become one of the primary means for many-especially those from the groups mentioned above-to finance higher education. For-profit colleges and universities know this, and they all recruit heavily from within the US military. Law enforcement personnel often receive similar benefits from the state in which they are employed; and many of those students are themselves also military veterans. But second, the funding coming from these sources is subject to a slightly different regulatory schematic than regular civilian graduate students. Within the Department of Education rules regarding public loan programs, there is specific language that limits the percentage any school can take from federal loans in relation to other, private sources. This is known widely as the 90/10 rule because that limit has been set at 90% of gross income. Yet, for students funded through the military benefit described here, a different formula has long applied setting this limit lower at 85% of gross income. So, in effect, the more students it recruits from these military and law enforcement benefit programs, the less any particular for-profit has to generate privately sourced tuition dollars.

Bar outcomes for these students were, for the most part, low. Such outcomes have usually been measured in bar exam passage rates. Bar passage is the threshold requirement to allow a new graduate to practice law in at least one US state. In the initial years of operation the Infilaw schools posted strong passage rates. Phoenix School of Law, for example, once boasted rates around 95%-at the time the highest in its jurisdiction with competing schools of much higher ranking scoring lower. This was attributed to a relatively selective admissions process at the time, and to a relatively low student-faculty ratio. Professors, in other words, could spend the needed time with students, especially minority and lower income students, to get them up to bar passage levels. With the onset of the "Great Recession" and its concomitant admissions decline across the entire sector, student selectivity declined. But at the same time, the profit model forced several of these schools to expand their student populations, increase incoming tuition dollars, and raise the student-faculty ratios to much higher levels. As bar passage rates declined, attention was also placed on employment outcomes.

Employment is the threshold requirement to allow students to contemplate paying back the loans they have taken out to earn their law degree. In the case of one of the largest for-profit law schools, these total loans average around 185,000 USD or 168,000 Euro (Florida Coastal 2019). According to popular wisdom, the 'general rule of thumb' for student loan borrowing is that the total amount of student debt should not exceed the borrower's anticipated annual salary for the first year out of school (Pounds 2016) . For most of the US for-profit law schools, average annual income for new graduates-even those with bar required legal employment-was in the neighborhood of $60,000, or nearly a third of where they should have been to justify the full student debt incurred to become a lawyer.

Jumping ahead in time to 2019, we can now see that regulators and lenders responded with heightened scrutiny. Perhaps the early caution toward for-profit legal training has been remembered; perhaps some of the growing critical literature (Campos 2012; Tejani 2017b ) on this sector has reached its audience. The ABA's Council has, since 2015, promulgated new rules about bar passage (American Bar Association 2019). It specifically censured schools in the for-profit sector and precipitated the closure of at least two of those. Most of the for-profits that emerged back in the 2000s have, by now, either shuttered or changed ownership. These closures include: Charlotte School of Law, Arizona Summit (formerly Phoenix), Savannah (a branch of John Marshall), and Western State (although Western State was in fact acquired by another institution at the last moment) (Park 2019) .

But, importantly, these outcomes are not altogether distinct from those of similarly ranked, low performing non-profits. Indeed, the non-profit law schools that have had their accreditation removed, or elected to close include: Whittier, Valparaiso, Thomas Cooley-Ann Arbor, and Indiana Tech. Another two schools, William Mitchell and Hamline were forced to merge. Clearly, the common denominator of these programs is low national ranking-itself tied to low student indicators and therefore lower market demand. Yet, the disproportionate number of for-profit institutions affected by the discipline, market and regulatory, is telling.

For-profit law schools in the United States have been the product of a very unique historical origin and evolution. At their origin in the years after the foundation of the new republic was a spirit of innovation and entrepreneurialism that maintained a suspicion for sovereign power-the same that had inspired the American Revolution in the first instance. But the eventual closure or merger of the early for-profits with university law schools, and the development of those into some of the most prestigious programs in the country bespeaks of a suspicion and disdain in the legal community for economic opportunism. That the American Bar Association was unwilling to accredit new programs with this business model-even while state bar associations allowed them to fulfill a specific niche in fast markets like California-is further evidence of this distaste for overt commercial gain within the profession. Readers from England and Europe will recognize this as part of a familiar aspiration that lawyers sit somehow above the problems of greed, corruption, and opportunism. Ultimately, however, the forced modification of the ABA rules to allow for-profits reversed this important trend in the USA. It would be a mistake to consider this reversal a complete aberration. It was, rather, part of a deregulatory zeitgeist across American political economy at the same time. This "neoliberal turn" in law and policy was by no means unique to the United States. A brief look at private legal education in other countries might therefore be instructive to draw some comparisons.

The structure of legal education in almost every other country in the world is generally inhospitable to training attorneys for overt commercial gain. Of all the other major centers for legal academic training in the world, only the United Kingdom even begins to approach the United States in harboring this kind of model. Yet even there, the practice is far more circumscribed. Before explaining why, it is useful to first draw a distinction between the two largest "parent legal families" of the world (DeCruz 2008, pp. 33-35) . These are common law and civil law. Common law countries are those whose legal systems hail either directly or indirectly from English colonial rule. Thus, most of the Old (Australia, Canada) and New (Singapore, India) Commonwealth countries use common law in some form or another. Of those, most retain the original English distinction between solicitor and barrister, where the former is historically a lesser-trained, more affordable, and more accessible form of legal expert and the latter a higher-trained, more expensive, and more selective advocate. Members of the public typically must approach a solicitor for common legal disputes, and then only when that practitioner has exceeded her own expertise or eligibility for practice in low-level courts will they engage the external services of the barrister. But whereas England and Australia still retain this dualist legal profession, Canada, India, Singapore and of course the United States do not.

Yet common law countries are not the only ones with a dualist profession. Civil law countries are those whose legal system hails from either or both Romanic or German law. As expected, this includes most of the countries in Europe, but it also includes their former colonies in regions such as Latin America, Africa, and the Middle East. Even several nations that would be considered Islamic Law countries operate in fact with a thick layer of civil law in matters of public and administrative authority.

Historically, France, a civil law country based greatly upon the Napoleonic Code, has been a dualist profession with a division akin to the English solicitor and barrister. The effect of this dualism in either common law or civil law tends to be a heightened prestige and social capital reserved for members of the legal profession in general. For this reason, whether and to what extent each nation maintains a dualist or monist profession has some impact on its approach to legal education. In some cases, the extreme selectivity with which advocates (barristers) are chosen translates into extreme rigor in the process of studying to become one.

Yet, this impact may not translate directly into generalizable lessons about business model. Of all the countries so far mentioned, only the UK hosts a large institution of for-profit legal education. That role is occupied by the University of Law system. Originally known as College of Law Ltd., the institution was granted university status in 2012 and bought by a private equity firm known as Montague for 200 million British pounds leading to an outcry from UK higher education experts (Kollewe 2012) . After three years of this ownership structure, Montague sold off the University to the Dutch company Global University Systems, a group which also owns the University Canada West-a predominantly business and commerce school in Vancouver. The University of Law has its campuses in Birmingham, Bristol, Chester, Guildford, Leeds, London Bloomsbury, Manchester, and Nottingham. Students can also pursue its degrees online.

Several of its features are similar to the for-profit law schools in the United States. First and foremost, the onetime ownership by a private equity firm in the same period suggests the global scale of the private equity boom, and its appetite for higher education-even hallowed professional schools. Second, the role of real property in the financial transfers is striking. In the USA, lucrative building acquisitions and leases were a significant part of the transactions leading to both the creation and the demise of several for-profit law schools. In the case of University of Law, several campus properties were immediately sold off by Montague to settle some of the considerable debt incurred in the acquisition. One of the great lessons from these transactions was the apparent fungibility of law school institutional edifices-business experts eyed law schools especially for this reason because the locus of their expertise was less in physical repositories and more in the organizational structures, faculty experience, and research databases. Finally, the qualitative commitment to technology and flexible service delivery was a third overlapping feature. The University of Law promised to offer its students modern, high-tech amenities and learning tools, as did their North American counterparts-particularly the Infilaw schools.

But, unlike the US for-profits, the University of Law system appeared to offer substantially greater value to its students. With a pre-for-profit history dating back to the 1960s and origins in the British Law Society (national bar association) itself, the institution and its brand carried greater weight, and boasted a more illustrious alumni network than anything similar in the United States. Its 64,000 graduates today are spread across 85 countries (University of Law 2019) and includes numerous members of parliament, academics, CEOs, and high level judges. The same cannot yet be said of the US counterparts.

Apart from England, no other countries host nationally accredited for-profit law schools. Somewhat similar to University of Law, however, Germany approved its first ever private non-profit law school in 2000. The Bucerius Law School, located in Hamburg, soon became one of the most selective in the country. Again, although not for-profit, the recency of its establishment places it on similar footing as most of the US for-profits and yet the experience with reputation and quality appears vastly different.

Ultimately, one is left to ask why such differences obtain in prestige, value, and quality between the similarly young law schools in these countries, or between the similarly commercialized law schools in the USA and UK. On one hand, all appear to be responses to market demand. The legal profession in all three countries had been extremely selective in the decades prior. The rise in urban population as well as financial capital transactions in all three led to rapid increases in the types and amount of accessible legal expertise needed to resolve family, property, contractual, and criminal matters. Yet, the availability of affordable attorneys to do this kind of work had not yet caught up with demand. The rise of private for-profit, or in the case of Germany simply private legal education was a response to this demand. It understood that a new approach to legal education was needed, and that the new professional environment created by technology, new transactions, and a diversifying urban population required innovations in the way lawyers would be taught to practice. In the case of US and UK for-profits, such innovations included more distance education via online teaching and learning, and in the US Infilaw consortium it included new offerings like integrated bar-tested subjects such as "Civil Litigation I" which combined Torts and Civil Procedure, as well as bar preparation folded into the three-year degree program (Tejani 2017b, p. xx) .

But these innovative measures in the US example were largely a failure. As already recounted, two of the three private-equity run Infilaw schools lost accreditation and were forced to plan for closure. The third applied for non-profit status but was denied, and then saw its president abruptly resign at a time when its students were not receiving their federal loans and could barely afford to eat (Bloch 2019). Western State found itself forced to close and create a "teachout plan" but found a last minute buyer. Savannah Law School, a branch of for-profit John Marshall in Atlanta, will cease operations by 2021. Under the new ABA outcome rules aimed at tightening practices in this lower end of the sector, most of these schools could not remain open regardless. Considering the need to satisfy capital investors in the private equity schools, it became more sensible to declare capital losses rather than wait out any recovery.

The primary losers in this case were the students. Thousands of law graduates, some without the ability to pass the state bar exams needed to gain legal employment, would be saddled with loan debt well in excess of US $100,000 (90,000 euro) each. Many of these students would be forced to find non-JD work in debt collection, property management, compliance, real estate sales, and otherwise. These would be, thanks to the recruitment model of "serving the underserved," disproportionately minority and lower income graduates.

The rise of for-profit law schools poses a substantial challenge to the United Nations call for "quality education" and "strong institutions" in its 2030 Sustainable Development Agenda. Underlying that call was a recognition that the rule of law depends upon legal institutions with profound integrity. This integrity can be understood foremost as an ability to withstand social and political pressures and instability. One of its primary foundations is independence from social and political change. Yet, what the for-profit law schools-most prominent in the US context-demonstrate is a decline in that independence and, therefore integrity. Their erection amid the many financial scandals of the 2000s-even as regulators struggled to figure out how to bring large corporations and banks back under the purview of legal oversight-tells much about the situation of law in our contemporary age. This situation, in effect, is that law is being increasingly conceptualized as acting in the service of economic growth. Whereas "society" was once the wellspring for the values that underpin legal orders in the West, today it is increasingly supplanted by "economy." The case of for-profit law schools was premised on this evolution.

The promise of for-profit law schools was said to be increasing access to justice for minority and lower income clients. In these communities, a great proportion of the legal needs for these communities involves criminal defense. In the United States, the 1964 Supreme Court case Gideon v. Wainwright guaranteed a stateappointed attorney to all criminal defendants where incarceration is a possibility. 7 A system of state-funded "public defenders" in both state and federal courts is tasked with the difficult job of representing these clients. In 2018, the National Legal Aid and Defender Association found that 80% of criminal defendants in the United States cannot afford their own attorney, and must depend on public assistance (Zoukis 2018) .

While there is therefore great demand for public defense attorneys, new law school graduates have to be able to afford this kind of work. They need to have student debt burdens light enough, or structured creatively enough to allow them to meet their obligations while earning the lower pay associated with public defender work. In the Los Angeles Area, the average public defender salary is approximately US $83,000. 8 In New York, that salary is US $87,000. 9 Recall that creditors recommend a 1:1 ratio between total debt and first-year income, and that law schools with the highest debt levels in excess of $125,000 are, precisely, those in the Los Angeles and New York areas, as well as the for-profits that have located themselves in smaller markets. 7 Gideon v. Wainwright, 372 U. S. 335 (1963) . 8 See Glassdoor.com (2019a) . 9 See Glassdoor.com (2019b) .

Until recently, lenders in the United States sold student loans with the understanding that entering public service would create a reduced debt obligation under a Public Service Loan Forgiveness program-a system of reducing amounts owed if a borrower chooses a lower income job in the public service. The US for-profit law schools made great efforts to promote this program as an accessible path for students not headed toward lucrative corporate law practice. But whereas this was intended to encourage students to enter fields where they were badly needed, recent reports show widespread problems in the way this program has been administered and students are increasingly dubious about risking complications to do the kind of public interest work the US criminal justice system has come to depend upon (Dickler and Nova 2019) .

In the end, increased debt burdens and low bar passage rates do not, in the aggregate, support access to justice. With disparate impact on minority law students, these outcomes actually represent the opposite: a commercial opportunism that took advantage of restricted access to capitalize on minority ambitions to improve individual economic standing and broader social justice. It was, in short, worse than if no efforts to improve justice had been made at all.

This leads directly to a consideration of the business ethics involved. Assuming for argument sake that these are primarily commercial organizations. They fail the test of any of the major ethical frameworks. Utilitarianism would call for a weighing of the aggregate costs and benefits of their efforts, and this can be judged either on the organizational level or on a broader social scale. At the organizational level, the above discussion reflects widespread costs including faculty and staff layoffs, students saddled with lifelong anxiety from debt and failure, and more general reputational harm to the legal profession. And while it is difficult to accurately assess investor returns without the documentation disclosed by more public companies, the abrupt and violent closure of these schools (rather than, for instance, weathering the storm for more long term, sustained benefit) suggests it had been a bad financial investment as well. Under a Kantian approach, one might ask whether the principles behind this kind of conduct would benefit society if generalized universally. Would the allowance of commercial activities that risk this kind of debt and distress surrounding other public goods-for example health and medicine-be something we could all support in the name of "increased access"? Likely not. And under an Aristotelian virtue theory does this kind of conduct-the kind that improves access for commercial gain (assuming it could even produce profit)-make us better off as people? For us to say yes, we would have to decide that the financial precarity of others is not our problem, or that gaining advantage from the ambition of the marginalized could be a virtue. It is not.

Finally, does the extension of commercial logics to the education sector generally and to professional education in particular make sense? Is there something unique about legal education that made it exceptional and therefore worthy of protection against market fundamentalism? The consideration of for-profit law schools in the context of the UN call for "sustainable institutions" is especially instructive here. Many of our key institutions are established on the bedrock of law. What allows them to remain unchanged is the defense they receive from advocacy groups and individual claimants who appeal to law and legal professionals for support. For sustainable development in global perspective, for instance in places where institutions could otherwise be toppled by the demands of basic survival, this is even more true. So, the environments in which we study and teach the law are of an especially sensitive nature. Exposed to the same market fluctuations as the rest of our global economy, they can be subject to sudden shifts and produce inconsistencies in the way law is viewed and understood by the very professionals needed to maintain its consistency. Granted, many would say, law is subject to varying interpretations. But, the underlying structures of law, on which so many other institutions rest, by design changes very slowly. The market, we all know too well, does not.

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Riaz serves on the National Advisory Council of the non-profit research center Law School Transparency, and his recent articles have appeared in American Ethnologist, U.C. Irvine Law Review, and Political and Legal Anthropology Review. His work has been cited or reviewed in outlets including the Harvard Law Review