Over the years, I’ve expressed many differences with the American Bar Association, ranging from its shift from a stodgy old guard lawyer group to an extremely progressive left wing political organization, driving away many, if not most, of its dues-paying members who wanted nothing to do with its newfound woke ideology to Model Rule of Professional Conduct 8.4(g).
Nonetheless, because of its legacy as the “foremost” voluntary lawyer membership organization, the ABA held two positions that enabled it to pretend it was a serious organization. The first, a review and opinion as to the qualification of nominees for federal judgeships, including the Supreme Court. This had been tenuous over the past decade as the ABA’s ratings became increasingly subject to its view of the nominee’s politics and ideology. By letter, Attorney General Pam Bondi put an end to the ABA’s role altogether. That doesn’t mean the next president won’t restore its role, but for now, it’s toast.
The other position of significance is that the ABA accredits law schools nationally, and most states require bar exam takers to have graduated an ABA accredited law school. Once again, it’s understandable why the legacy ABA was given this power back when. Someone had to do it, and the ABA was widely deemed the legitimate voice of the bar. But that was then and this is now.
Whereas universities generally are accredited by regional accrediting organizations, the ABA’s Section of Legal Education and Admissions to the Bar is the only game in town. Federal student loans are only available to accredited institutions, and the vast majority of states require a degree from an ABA-accredited school to take the bar exam. Could this soon change?
As the cost of legal education continues to rise and technological changes threaten to transform the delivery of legal services, the ABA’s de facto monopoly on legal accreditation is under siege. Texas and Florida, the states with the third and fourth-most lawyers in the country, are both considering whether to stop requiring bar applicants to have attended an ABA-accredited school.
Volokh Conspirator Jon Adler raises a number of issues with the ABA’s accreditation standards, foremost of which is its Standard 206.
The ABA is under particular scrutiny for mandating that law schools consider race in admissions and faculty hiring decisions as a condition of accreditation. Under ABA Standard 206, law schools are required to “demonstrate” by “concrete action” their “commitment to diversity and inclusion” with a particular focus on providing opportunities for “racial and ethnic minorities” in admissions and “having a faculty and staff that are diverse concerning gender, race, and ethnicity.” That complying with such a standard may conflict with applicable state or federal law does not matter, according to the ABA, which has declared that any law that “purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions of employment decisions is not a justification for the school’s non-compliance.”
Requiring law schools to violate law to maintain accreditation is quite the flex. But Jon raises another issue as well, that the ABA has been the keeper of the guild, reducing the number of students eligible to become lawyers while keep the cost of law school unnecessarily high.
Whether the ABA sees itself as a cartel today, much of its accreditation behavior aligns with what a self-interested cartel would do. Accordingly, many of the ABA’s accreditation requirements focus on costly inputs, such as the number of books in the library or the number of full-time, tenured faculty, that have no demonstrated relationship to a student’s ability to pass the bar or become an effective lawyer. These requirements, however, have helped inflate the cost of obtaining a law degree and stifled innovation in legal education.
Accreditation was intended to fulfill the need of protecting the public by assuring that lawyers were adequately trained and competent to practice. Has the ABA fulfilled that purpose?
In theory, accreditation could serve as a means of consumer protection, helping ensure students do not waste money on fly-by-night operations and graduate capable of passing the bar and serving clients. Yet it is not clear that ABA accreditation has ever actually served that purpose. Just as the medical profession has sought to limit the number of medical school spots to constrain the supply of doctors, the history of legal accreditation suggests that the ABA became involved to advance the financial interests of existing lawyers.
Is it time to end the ABA’s control of law school, and hence bar admission, accreditation? Has its political shift leftward made accreditation a captive of ideology, while simultaneously keeping the cost of law school out of reach? But if not the ABA, then who should accredit law schools?
*Tuesday Talk rules apply.
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The vast majority of “legitimate” colleges/universities use regional accreditation and then have individual program accreditation from various recognized accrediting bodies. There is not one body for each type of program. There are various engineering accrediting bodies, some more respected than others, but all have some sort of standards about what is learned, how it is taught, resourcing etc. A lot of the programs at my university have various accreditations attached.
The regional accreditors all have similar standards, but different focuses, or so it seems in my experience.
I realize it’s a matter of someone else stepping up, and some university taking the lead on this, and of course funding. Maybe my alma mater ASS Law, AKA Antonin Scalia Law School can take the lead and get the Leo and the Heritage Foundation to start up an accreditation agency….
The idea of the ABA keeping the number of lawyers down is somewhat laughable given the number of law schools that effectively have open admissions policies. If the floor to become a lawyer were any lower we would be underground.
It may be the case that the standards used by the ABA have the effect of driving up the cost of law school without any related benefit. I think we can reconsider which standards are arbitrary but that doesn’t mean we cant replace them with better and more relevant requirements.
If I recall correctly – though it may have changed in the decades past – California (and … Georgia?) had a number of “unaccredited” law schools that still entitled graduates to sit for the California Bar. My long-ago-far-away Congresscritter in Pennsylvania was also one of the last “just went and sat for the Bar Exam” lawyers in the area.
But should law schools even BE “accredited?” After all, isn’t it the Bar Exam that really proves whether or not an individual has at least the minimum competency (in theory) to practice law? Why *not* return to the “good old days” of just requiring lawyer-wannabes to pass the Bar? Is there any reason – and I can’t see one, other than ABA propaganda – that states, on their ownsomes, couldn’t just make that change?
Should anyone be allowed to take the bar exam, regardless of school (or no school, as the case may be)? I can see problems, such as the fact that no firm is going to hire someone who didn’t attend law school, and I don’t think the bar is a particularly high bar, but then, Justice Jackson didn’t go to law school, so you may be right.
Why not? If the test of lawyering ability is measured by passing an exam, what difference does it make what the educational background of the tester is?
That a law firm may not hire a person of that stripe is irrelevant – graduation from law school is no guarantee of being hired, either.
Criticisms of the ABA for mission creep and/or politicization remind me of similar justified criticisms of the ACLU, albeit with some fundraising/membership income differences.
Though my first thought when someone says replace the ABA accreditation is, what will the new model be? Come up with the alternative first, before you get rid of the current system.
I used to be an ABA member (foreign, but admitted to a NY bar so regular member), and went to two annual meetings in Toronto which I found interesting and useful CLE. But I stopped renewing my membership as over time that ABA Journal and website, and stories I read about ABA positions, made clear it had become the sort of organization described above. I had hoped that lawyers would be committed to upholding legal and constitutional values, even if we personally disagreed with the results, but apparently that is rare among lawyers not just the general public. I might rejoin just for the year if it makes going to this year’s Toronto meeting more cost-effective.
My recollection (do not rely!) is that there are about 5 states that allow non-ABA law school graduates to write the bar exam and become a lawyer. New York was a popular choice years ago when I wrote the bar and was admitted, because they accepted foreign common-law school degrees as a qualification, as with some other states. California I think still allows study under a lawyer or judge (which is the route Kim Kardashian is/was taking) as well as non-ABA law school graduation (in-state or foreign).
I do think law school education is artificially long and expensive (e.g., I disagree with requiring a full degree before going to law school, but that’s another discussion), in significant part due to ABA requirements.
Why do law schools need to be “accredited” at all? They weren’t always, and schools with established reputations for producing capable graduates should be able to get by on that alone. There would be a question with new schools, of course, but do we really need more law schools? Screw the pretentious moronity of ABA, and let the market decide which schools are worthy.
Somewhere, last I’d looked, around a thousand or so criminal defendants in Oregon were not being “processed” due to a lack of public defenders.
So yes, more law schools – or Bar Exam Takers – to produce more attorneys who can take those cases and get those people justice.
[Ed. Note: The problem isn’t lack of lawyers, but lack of funding for lawyers. Even lawyers need to eat.]
Note back to Ed.: Pretty much agree.
But that said, my local jurisdiction is offering just a bit south of ten grand a month for a city public defender – and getting no takers. Maybe that’s not as good a paycheck as I’d thought?
This is also the city where a councilor is on the record asking, “Why should the city have to pay for an attorney for a criminal?”
Historically (if I understand correctly), there were two routes to becoming a lawyer: (1) Attend law school; (2) “Read for the bar” which basically meant intern with a lawyer for a considerable period of time and then take an exam. The people who did one, didn’t trust the competence of the ones who did the other. So the system compromised by requiring both law school and the bar exam.
It’s my understanding that as in one or two states degree from an unaccredited law school may allow someone to take the bar exam and practice in that state, so there may be a state or two that allows reading for the bar (with some sort of oversight I expect) and then an exam with no law school at all.
Whatever states may allow, of course, employers can always require tumbling through additional hoops.