The ABA Can’t Be Trusted

Somebody has to accredit law schools, and that job has long fallen to the American Bar Association. It makes sense, on the one hand, to put the job in the hands of an organization that was once the guardian of professional competency. It doesn’t make sense, on the other hand, to leave something as important as accrediting the humongous business of law schools to an organization held captive by the nice folks whose paycheck is signed by the schools they’re judging.

And for a long time, nobody gave it a second thought. They are now.

The National Advisory Committee on Institutional Quality and Integrity (NACIQI) soon will pass its decision back to the U.S. Department of Education, which last week recommendedshutting down ACICS and will have 90 days to decide the accreditor’s fate. An appeal by the accreditor and lawsuits could follow.

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Most notably, the panel on Wednesday rebuked the American Bar Association, in part for its lack of attention to student achievement.

Ah yes, students. The poor schmucks who are tolerated because they take out the loans to hand over to the schools, which in turn uses the loot to pay law profs to write law review articles that no one reads. Seems legit.

The panel said the ABA had failed to implement its student achievement standards and probationary sanctions, while also falling short on its audit process and analysis of graduates’ debt levels.

What this means, exactly, isn’t clear, but it seems to say that they’re taking in an awful lot of money while their students are failing miserably. Like that Ajax Refrigerator Repair school you find on the back of a matchbook,* except that there are jobs for refrigerator repair.

Barry Currier, the ABA’s managing director of accreditation and legal education, said the finding followed a department staff report that listed minor technical deficiencies with the association’s accrediting process.

And as anticipated, these problems are deemed “minor technical deficiences,” because it’s not like a lawprof’s paycheck bounced. That would be serious, bordering on intolerable. It’s not like the ABA has no standards at all.

Of course, the ABA has been very busy lately, taking up the cause of diversity and inclusion, both within the law and without.  But that’s not all it’s been up to.

There are currently more than 200 law schools in the United States with varying degrees of accreditation from the American Bar Association (200 fully accredited law schools, and 3 provisionally accredited law schools). Since the law school crisis began sometime between 2007 and 2008 — with tens of thousands of deeply indebted recent law school graduates unable to secure full-time, long-term employment as lawyers — the ABA has granted accreditation to 12 additional law schools and/or merged law schools.

Accrediting 12 more law schools, even as the 200 in existence are churning out grads who have no place to go, might be considered a less than wise move. But they’re still lawyers, right? I mean, they may not have jobs, but they can hang out a shingle, practice law, become a member of the guild, amirite?

Well, there’s one itty, bitty thing these grads still need to do before they get to don the official uniform of privilege. They have to pass the bar exam. And, well, an awful lot can’t. The February, 2016 New York bar exam has a total pass rate of 41%.  And this isn’t exactly a one-off problem, but something that’s been coming down the pike for a while now.

To put this in a bit of context, after three years of law schools, hundreds of thousands of dollars, and blood, sweat and beers, law schools send 59% of their students out into the world who can’t pass the bar. Now, one can complain about the bar exam as a measure of competency, but the fact is that it’s just not all that hard to pass, which explains why so many blithering idiots wear pinstriped suits to work. And if you’re not capable of passing the bar after three years of law school, somebody really, really blew it.

How could the situation have gotten so bad? Did the ABA just become so complacent that nobody could bother noticing that the law schools it accredited were failing miserably? Was it so deeply concerned about the welfare of academics that it thought nobody would notice it was accrediting new law schools in the face of a glut of unemployed lawyers?

Or has the ABA, a captive of academics and official lawyers who are overwhelmed with their important professional committee assignments and the potential to use them to create a diverse Utopia, forgotten that when it comes to law schools, they still have to give a damn about, you know, students? I mean, beyond their ability to get non-dischargeable loans?

Somebody has to accredit law schools. I surely don’t want the job. But the ABA has proven that it really sucks at it, and can’t be trusted to put the interests of students and the profession ahead of the pocketbooks of academics and the feelz of progressives.  Who should be doing this is unclear, but it certainly isn’t the ABA.  Now that I think about it, there really isn’t much of anything the ABA does well. Except maybe give me funny things to write about. Well, maybe not so funny, if you happen to be one of those kids who cashed out their future to go to an ABA accredited law school.

*Archaic reference. Not important enough to google.

15 comments on “The ABA Can’t Be Trusted

  1. wilbur

    Ten more law schools? Seems to be a questionable business decision for the schools opening them, but they aren’t asking me.
    Were I 40 years younger, I would not choose to go to law school. I don’t think I could get a job, plain and simple.
    Additionally, I paid my own way through law school. I don’t think that would be possible today, requiring me to acquire a significant student loan debt. Wilbur does not like debt.
    Refrigeration repair is as honorable as the legal field. More so on a hot day.

  2. B. McLeod

    Amen, as to the “can’t be trusted.” What has so far received little focus is the incestuous conflict created by the tens of thousands of “free student memberships” ABA recently conferred on students at accredited schools. At a time when ABA Treasurer’s reports admit the association is losing dues and members, and is, in fact, no longer viable as a dues-sustained organization, the “free student memberships” serve important functions. Most obviously, they pad the membership roles (and ABA Journal “subscriber” numbers), and thereby enable ABA to obscure the extent of its actual membership decline (officially, this is not “fraud,” but “marketing” or something). In any event, the artifice leaves ABA dependent on maintaining the “accreditation” of the “accredited” law schools. To threaten a school’s accreditation by asking hard questions is to imperil ABA’s ability to count some number of hundreds of “free student members.” It is a patent conflict of interest, and should alone suffice to remove ABA from any role in the “accreditation” of law schools.

    1. SHG Post author

      To the uninitiated (by which I mean kids and non-lawyers), bar associations are understood to matter. What they don’t realize is that they’re voluntary associations, except in states that mandate membership, no better than any club that would have us as a member, but without a golf course.

  3. KatoSauce

    My law school didn’t use enough asterisks when it published its employment figures for recent grads in its successful effort to entice me to sign my life away to the nondischargeable loan. Then I learned what it meant to be “employed” as my school put it. I had joined the guild by doing doc review and taking appointed traffic and misdemeanor cases at bargain barrel pricing. That’s full employment as a lawyer. The school didn’t ask how many hours I was working or what I was up to after my temporary doc review project ended in two weeks. It didn’t care once it had enough to report me as employed.

    The problem might correct itself if law schools had to tell the truth. I don’t particularly care who enforces it, though it seems the ABA had its chance and failed.

    1. SHG Post author

      Things you pay attention to after-the-fact aren’t always the same as beforehand. Bright-eyed, bushy-tailed, lawyer wannabes all think they’re the ones who will grab the brass ring. One might hope the grown-ups at the ABA or lawprofs might consider their poor decision-making powers, but then, one would be disappointed.

  4. Jim Tyre

    *Archaic reference. Not important enough to google.

    You know you’re old when you don’t need to google Scott’s archaic references. But truck driving school might be a better alternative.

  5. John L. Kane

    Two things to consider about the ABA: (1) Look for increased campaigning to eliminate the bar exam and spread the diploma privilege. If the test is too tough, get rid of the test. (2) Look for a lower definition of competence and, possibly, an effort to eliminate the ethical requirement that a lawyer must be competent. We already have a revised definition of conflict of interest that practically eliminates the proscription. We also have a new definition of “law related” employment to bolster the statistics on placement. I wonder what would happen if Rule 10 (b) (5) were applied to law schools. Aw shucks! That’s silly.

      1. B. McLeod

        This is an analogy that has been bandied about for years, but law school is more akin to used car sales than to sales of securities regulated under the ’34 Act, and people fairly ought to know that. If you trace through the “elements” of what is a “security” in cases involving unnamed “instruments,” investment in a law school educations does not get there because of the role that the student’s own effort plays or might play in determining how the “investment” comes out. I don’t know that any law schools would still be viable if they had to make ’33 Act risk disclosures, or were subjected to ’34 Act standards on material misstatements and omissions. Recruitment certainly would not go on as it does now. I can say that with some confidence.

    1. B. McLeod

      Mr. Kane, if I may say, the hue and cry to water down the bar exams has already been raised in a number of ABA Journal articles, and I think you are simply correct on that point. As far as “competence,” I don’t think the rule ostensibly requiring a lawyer to be “competent” will ever be changed. However, if you are in active practice, I would simply ask you if you have ever seen a colleague act incompetently, and if so, whether you reported it. How many times has your main jurisdiction of practice actually disciplined any licensees for “incompetence”?

  6. Pingback: Judge Kane On The ABA’s Handling Of Law Schools

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