There was a time when it was arguably proper that law school accreditation was placed in the hand of the American Bar Association. That time passed a while ago, when the ABA lost the faith of the legal profession as it morphed from an organization focused on the law and lawyers into a captive social justice organization. Lawyers fled the voluntary bar organization as it took up arms for causes far beyond the law and with which the majority of lawyers either disagreed or, even if they supported the causes generally, believed to be outside the purview of the ABA.

And yet, the ABA maintained its official position as accreditor of law schools. This time, however, its attempt to “reinvent” law school based on little more than an ideological belief that it could make law students “practice ready” if only there was more time in clinics and less time in the classroom. After all, why let learning law get in the way of cosplaying lawyer? Mind you, this happened in conjunction with a view that the third year of law school was largely a waste of time, required just to get another year of tuition out of students and give law profs a place to go during the week.

Accordingly, the ABA decided to double down on experiential learning, taking the prior requirement of six credits and turning it into 12 credits for graduation. Why? They say so, that’s why.

There are many problems with the ABA’s approach to accreditation. But perhaps the biggest problem is that the Council adopts standards without any proof these standards will accomplish their stated goal. The ABA demands that law schools demonstrate that they are satisfying certain objectives, but the ABA never imposes such mandates internally.

Josh Blackman isn’t alone in criticizing this change with neither the support nor approval of law schools.

Dan Rodriguez of Northwestern stated, correctly, that there is no evidence showing these reforms will be effective:

But Northwestern Pritzker School of Law professor Daniel Rodriguez said the revisions are unlikely to win over critics like himself who believe the ABA is going too far in dictating curriculum without providing adequate data to justify the proposed changes.

“There is a conspicuous lack of what we might call evidence-based analysis in the council’s work,” Rodriguez said.

Brian Leiter of Chicago makes the point more forcefully:

The latter gives law schools an opportunity to organize in opposition to these indefensible changes. Some possibilities: (1) a collective refusal by dozens of law schools to comply with these requirements that will disrupt their programs of legal education without any evidence of their benefit–let’s dare the ABA to start stripping accreditation from elite law schools, state flagships, etc. (2) a collective effort to lobby the Education Department to recognize other accreditors of law schools, and perhaps to strip the ABA of its accreditation role entirely given its repeated bad behavior.

Even Gerard Magliocca, one of the most mild-mannered people I’ve ever met, is outraged:

The decision of the Council on Legal Education on new experiential learning requirements for law schools, summarized here, is just more evidence that the ABA’s accreditation role should be curtailed or eliminated. I’ve been a legal educator for nearly 25 years. I can’t think of any positive contribution by that organization in this field.

Notably, this isn’t an attack coming from right or left, but from the political spectrum of views, all of which have had enough of the ABA dictating, without any evidence that it serves a legitimate pedagogical function, how law schools must function.

Aside from the lack of any evidentiary basis for the change, and aside from the ABA essentially ignoring the commentary from law schools against the change, the motivation behind the change is grounded in an untenable ideological belief that if you require law students to participate in clinics, meet “real clients,” go to real courts and make real arguments, they will emerge from school “practice ready,” able to be practicing lawyers the day they leave law school.

But not all law students want to be litigators, no less trial lawyers. Few clinical profs have the chops to be lawyers themselves (a shocking percentage of prawfs aren’t admitted to practice law), no less train students how to be “real lawyers.” The sort of “clients” represented by clinics tend to be a very select group, reflecting little of the broad spectrum of clients in need of representation and tending to indoctrinate impressionable students to their peculiar needs at the expense of the full panoply of positions with which lawyers deal in practice.

The flip side is that law school classes in the third year tend to deal with finer areas of law, giving more detailed education than the broad basic courses taught in the first and second years. If students are compelled to work in a landlord/tenant clinic (and you know they won’t be representing landlords, yuk), they won’t be taking secured transactions, even though that may be where they hope to practice. Is that education?

And then there’s the problem of students being forced to work. Part-time and evening students have jobs, and they’re burned by this new requirement. Even the full-time students, who are still required to pay tuition, are then required to work for free for the sake of the clinics’ clients, which is viewed as an inherent virtue as they are in need of representation. That may well be, but their need of representation bears no relation to the students’ education. The students are just free, if not yet competent, “lawyers.”

But as Josh and the others note, the core problem is that the ABA is ramming this change down the throats of law schools without demonstrating that there is any proof that it serves its putative purpose. For law schools, this baseless ABA mandate means comply with whatever nonsense the Council comes up with or lose accreditation. The only thing that should be lost here is the ABA’s authority to accredit law schools. If there was any doubt that it couldn’t be trusted before, it’s now beyond question. The ABA has forsaken its legitimacy and should no longer have any role to play in law school accreditation.