Project Progress

Much to the joy of my children, I have at last completed the draft version of the research paper I’ve been working on for the last six weeks.

This project has been incredibly stressful to me, not only because I don’t like that my writing assignments stress-out my family, but because 1) I don’t usually write drafts of anything and 2) This is the longest paper I’ve ever had to write. I’m also incredibly tired of legal studies.

At any rate, the draft is done! The short version is below, and if you’d like to read the 25-page version you can find it at The Capstone Project.

The ABA Law School Accreditation System

All lawyers are not created equal. Outside of the legal profession, it is not well-known that there are two types of law schools, and that graduation from one or the other type leads to dramatically different outcomes not only for lawyers, but for society as well. Most states in the U.S. require that law students graduate from a law school accredited by the American Bar Association (ABA) to take the state bar exam and become a licensed attorney.  Graduates of law schools which are not accredited by the ABA are not allowed by most states to sit for the bar exam and become licensed attorneys. The ABA accreditation system has led to an increasingly costly track to becoming a lawyer, with the end result being a legal system which is unaffordable for a majority of the U.S. population.  If states were to set aside the requirement that law students must graduate from an ABA-approved law school, the cost of a legal education would be driven down, leading to a legal system that is more affordable for a greater number of people than the same system is now.

The ABA is not a government or state actor, but in practical reality it exercises extensive authority over the nature of legal education and derivatively the provision of legal services (Kmiec, 2007). A century ago, few states required formal legal education of any kind for admission to the bar. In fact, some of the greatest Supreme Court Justices did not even graduate from law school. The American Bar Association was formed in 1878, concerning itself with “improving the competence of those entering the legal profession.”  In 1921 the ABA developed its first Standards for Legal Education and began to publish a list of ABA-approved law schools that met its standards. Since 1952, the Council of the Section of Legal Education and Admissions to the Bar (the Council) has been approved by the U.S. Department of Education as the recognized national agency for the accreditation of programs leading to the first professional law degree.

As the ABA became better organized it not only “prevailed upon state judiciaries and legislatures to effectively require a law degree as the price of admission, thus reducing competition — and increasing incomes –for subsequent generations of lawyers,” but has over the years added an accreditation process (McGinnis, 1996). This accreditation process has not even been run by government officials, but instead is run by the ABA itself.  The legal profession, and thereby society, is burdened not only by the regulatory bureaucracy of the ABA, but by the complicity of the states’ requirement for graduation from ABA accredited law schools coupled with the requirement that students attend three years of an ABA accredited law school.

Most of the arguments about legal education reform center on the ABA accrediting of law schools; in reality, however, the responsibility for licensing lawyers in our system falls not to the ABA but to the state supreme courts. It is the state supreme courts who decide what certification is necessary, and what the appropriate training is, to become a licensed lawyer. Nearly every state Supreme Court has come to the conclusion that graduation from an ABA accredited law school qualifies a graduate to take the bar exam in that state and thereby become a lawyer in that state. “No federal authority compelled the state supreme courts to do this” (Morgan, 2007).  According to 2011-21012 ABA Standards,

The majority of the highest courts of the states rely upon ABA approval of a law school to determine whether the jurisdiction’s legal education requirement for admission to the bar is satisfied. Whether a jurisdiction requires education at an ABA-approved law school is a decision made by a jurisdiction’s bar admission authority and not by the Council or the ABA. The Council and the ABA believe that every candidate for admission to the bar should have graduated from a law school approved by the ABA, that graduation from a law school alone should not confer the right of admission to the bar (2011-21012 Standards and Rules of Procedure for Approval of Law Schools).

It is not in the minds of most people that it is elected judges who have required graduation from an ABA accredited law school in order to enter the legal profession. If the general public were aware of how the attorney licensure process actually works and thereby affects the cost and availability of legal services to that public, the focus of judicial-retention elections could change. If judges are not willing to address the needed reform in the attorney licensure process, they can be voted out and be replaced with judges who are more sympathetic to the needs of the public, especially the public who cannot currently afford legal services which are part of the system the judges oversee (Kmiec, 2007). ABA accreditation should be irrelevant to the education of an attorney; what is relevant is the “outcome” of legal education and “measures that focus on what students actually take away from their educational experience and how it translates into actual legal skills as they enter practice” (Podger, 2009).

William Henderson and Andrew Morris, in their article What Law School Rankings Don’t Say About Costly Choices, point out:

Regardless of the pedigree of one’s degree, every lawyer’s long-term success depends upon the development of key professional skills: time management, interpersonal skill, teamwork, excellent written and oral communication, emotional intelligence and the elusive intangible of “judgment”. Yet the key is avoiding the financial vise of excessive law school tuition. (Henderson & Morriss, 2008)

According to Winston Clifford and Robert Crandall, writing for the Wall Street Journal, every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality. Legal education needs this same kind of competitive challenge. In his article Legal Monopoly: Law Schools Are the Beneficiary of the Regulatory State, And They Return the Favor, John McGinnis stresses that deregulation of law schools, as with the deregulation of airlines and other industries, will decrease prices. These decreased prices will not only be for law school tuition, but ultimately legal services as well.

ABA standards have become too detailed and prescriptive, stifling creativity in law schools that could bring down the cost of legal education. (Levmore). Ideally, standards should set appropriate minimum guidelines for high-quality education while giving schools flexibility to design and create programs within the parameters of the standards.  Outcome measures, i.e. exams, are already the norm for accrediting bodies in other disciplines, including medicine, dentistry, pharmacy and architecture.  (Podger, 2009). Government, law schools and the profession need to work together to redesign the grossly deficient legal services system; the best place to begin would be with discarding the ABA accreditation system for law schools.  Reforms would require legislation to sweep away the regulations that support the current system.

Entry deregulation in the form of elimination of the ABA law school requirement would lead to established law schools facing pressure to reduce tuition and shorten the time to obtain a degree. This would substantially reduce the debt incurred by those who choose to go to law school (Clifford & Crandall, 2011).  The bar exam is at least in form a “performance standard,” testing actual skills relevant to law practice. If society believes that some minimum level of knowledge and skills should be required to practice law, that “minimum level” can be regulated most directly and cost-effectively through examination. (McGinnis, 1996). ABA accreditation should be irrelevant; by focusing on the price of school rather than accreditation, law school graduates will have the financial freedom to pursue jobs without crippling debt, let alone the stigma of having studied at a non-ABA school. There is no basis for the argument that graduates of ABA law schools are better or more qualified attorneys than graduates of non ABA-approved law schools.

The ABA needs to be recognized for what it is: “an ideological organization forcing its ideology into the standards of accreditation” (Baker Jr., 2007). The ABA process has resulted from the lack of adequate competition, but rather than try to develop a competing accreditation method or agency, the U.S. legal system would most benefit from entirely disregarding reliance upon ABA law school accreditation. Neither the ABA accreditation system nor the requirement for graduation from an ABA accredited law school is beneficial to society. Many more people could afford legal services if states did not require graduation from an ABA approved law school to take an exam or become a licensed attorney.  Most non-ABA law schools can provide an excellent legal education at a fraction of the cost of ABA law schools; increased competition from non ABA law schools would lead to decreased legal education costs. States should not require graduation from ABA accredited schools as part of the licensure process for attorneys; the cost of legal education would be driven down and legal services would become more affordable for more members of society.

References

2011-21012 Standards and Rules of Procedure for Approval of Law Schools. (n.d.). Retrieved November 12, 2012, from americanbar.org: http://www.americanbar.org/groups/legal_education/resources/standards.html.

Barnhizer, D. R. (2011). The Purposes and Methods of American Legal Education. The Journal of the Legal Profession, 36(1), 1-76.

Clifford, W., & Crandall, R. W. (2011, August 22). Time to Deregulate the Practice of Law. Wall Street Journal, 258(44), A13.

Dranias, N. (2007). Past the Pall of Orthodoxy: Why the First Amendment Virtually Guarantees Online Law School Graduates Will Breach the ABA Accreditation Barrier. Penn State Law Review, 111, 863.

Henderson, W. D., & Morriss, A. P. (2008, April 16). What Law School Rankings Don’t Say About Costly Choices. Retrieved November 11, 2012, from lawjobs.com: http://www.lawjobs.com/newsandviews/LawArticle.jsp?id=1208256428026&slreturn=1&hbxlogin=1

Kmiec, D. W. (2007, Spring). Law School Accreditation: Responsible Regulation or Barrier to Entry? Texas Review of Law & Politics, 11(2), 377-380.

Levmore, S. (2007, Spring). Uncapturing Law School Regulation. Texas Review of Law & Politics, 11(2), 391-394.

Liptak, A. (2004, April 25). Virtual Jurisprudence; Forget Socrates. Retrieved November 12, 2012, from nytimes.com: http://www.nytimes.com/2004/04/25/education/virtual-jurisprudence-forget-socrates.html?pagewanted=2&src=pm>

Lore, M. (2007, September 3). Virtual law school grads can’t take the state’s bar exam. Retrieved November 11, 2012, from minnlawyer.com: http://www.nytimes.com/2004/04/25/education/virtual-jurisprudence-forget-socrates.html?pagewanted=4&src=pm

McGinnis, J. O. (1996, September 30). Legal monopoly: law schools are the beneficiary of the regulatory state, and they return the favor. National Review, 48(18), 42-46.

Morgan, T. D. (2007). It’s Not Perfect, but the ABA Does a Key Job in State-Based Regulation of Lawyers. Texas Review of Law & Politics, 11(2), 381-384.

Podger, J. (2009, November). Self-Study Program. ABA Journal, 95(11), 61-62.

Sebert, J. A. (Spring). ABA Accreditation Standards and Quality Legal Education. Texas Review of Law & Politics, 11(2), 395-398.

Shepherd, G. B., & Shepherd, W. G. (1998, July). Scholarly Restraints? ABA Accreditation and Legal Education. Cardozo Law Review, 19, 2091 -2223.

Stein, R. A. (1991). The Future of Legal Education. Minnesota Law Review, 945-964.

Stein, R. A. (2006, March). Maintaining High Standards. ABA Journal, 92(3), 62-62.

Terry, N. P. (2001). Bricks Plus Bytes: How ‘Click-and-Brick’ Will Define Legal Education Space. Villanova Law Review, 46, 95-135.

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