After Law School Deregulation

As our regular readers know, I’m no fan of the ABA accreditation process. It is expensive, it focuses on the wrong questions, executes like a bureaucracy, and it raises the costs to purchase legal services while depressing the supply of lawyers.  That is: the ABA works (not particularly well) to serve current lawyers, while (diffusely) harming current and potential students and lay consumers.  Like Brian Tamanaha, I think the ABA ought to be stripped of its power to regulate law schools.

But what then?  Or, as the late, great, Larry Ribstein wrote, what happens “after the fall of regulation.” There are four (well-known) secular trends to consider:

  1. Consistent with an overall decline in civil life, local, state, and national Bar associations are in severe decline.  Such associations’ capabilities (intellectual, social, economic, political) are at lows not seen since the early part of the 20th century.
  2. Jobs – crucially, including state government jobs – aren’t coming back.
  3. We’ve only begun to see the effects of technological disruption of legal practices.
  4. Educational accreditation is increasingly professionalized (outside of law), requiring the efforts of ever larger numbers of people to manage it.  Accreditors are their own interest group.

When I put this together, what I see looming is the eventual loss of ABA accreditation power, as the association, increasingly hollowed out, surrenders its accreditation power to concentrate on its state-centered monopoly and “fighting offshoring.”  For a while, local  bars will try to hold onto incumbent-protecting Bar Exam credentialing rules, but pressure from other states (Nevada and Delaware!) will undermine that practice.  At that point, I worry, the local university accreditors will sweep in and impose a set of suffocating new and different accrediting requirements, which will be even less tied to the unique situation of professional law schools.  We’ll know that this day has come when HLS comes out with an elaborate webpage mapping its curriculum, and Yale is told it has to do interim assessments instead of one final exam. Pitted against this trend toward regional (non-legal) accreditation  will be distance teaching, which, ultimately, will differentiate law schools back into the regional and national silos they were in in the 1950s.

Sound about right?

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9 Responses

  1. Bob Lawless says:

    Sound about right? Only time will tell.

    OK, that was meant as dry humor and is probably too dry to qualify as humor. I wanted to ask about something in particular. Dave you suggest Nevada and Delaware might lead a charge against incumbent-protecting credentialing rules. Why pick these states and by what mechanism would they change? The Nevada bar is a master of incumbent protection. To be persuaded on the scenario you see, I need a more detailed story to understand how any state will take the lead in breaking up the market power of the cartels . . . er, bar associations.

  2. Dave Hoffman says:

    Sorry, I meant that states will act like DE/NV does in corporate law. I had thought of states like California, which takes the lead already in permitting foreign LLMs to graduate.

  3. Michael Cedrone says:

    Hmmm… You may be right about many of your predictions, but I want to focus on a small piece. What’s wrong with curriculum mapping, or, for that matter, interim and formative assessment? I do not mean to blindly endorse these steps, but both are sound, evidence-based practices that improve educational outcomes. Law schools would do well to consider them. Prior to my present career as a lawyer and law professor, I was a public school teacher and hold a degree from an education school. I do not understand the disdain in some quarters of the legal academy for the insights contributed by professional schools of education.

  4. A.J. Sutter says:

    I’m not sure I understand the “depressing the supply of lawyers” argument. Aren’t lots of lawyers out of work currently?

    Maybe more lawyers are needed in some fields, such as legal services for the poor. And maybe one could argue that because of the high cost of law school (which maybe one could argue has to do with the ABA, and not also, say, US News and university fiscal policies) new graduates don’t set their sights on such low-paying work.

    But even if law school were cheap, would enough new grads be attracted to that work to eliminate the shortage? Or would they still be attracted to higher-paying jobs? Moreover, why aren’t the unemployed lawyers flocking to fill the undersupplied niches?

    Mightn’t the existence of state bar licensing requirements, and the lack of reciprocity in some key states, have more to do with any undersupply problems? And, pace your scare quotes, maybe offshoring, too? And anyway, there is little empirical evidence to support the idea that everyone gets served in a deregulated market — especially people without money. But what other undersupply is there?

  5. dave hoffman says:

    Michael
    I’ve read a bunch about curricular mapping. I think the “evidence” that it is useful is mixed. But I didn’t mean to be scornful: I simply meant that when we see YLS and HLS do it, we’ll know that regional, non-legal, accrediting bodies have started to make their presence known.

    AJ
    This is an old debate, which we rehashed on the old thread. I’d rather not divert this particular discussion now, if it’s all the same to you! But in terms of “undersupply”, I was thinking primarily of Gillian Hadfield’s work, which I’m sure you are familiar with.

  6. dave hoffman says:

    As for interim assessments, I am very much in favor of them. They do, however, create some pressures on law schools’ business model. (Not that this is a bad thing – the model is broke!) Schools’ ability to adjust and support interim assessments/group work is limited by the ABA regs.

  7. Michael Cedrone says:

    David, thanks for your thoughtful responses… and forgive me if I implied that you know less about educational theory than you actually do!

    I think your views about interim assessment are exactly right. On the question of regional, non-legal, accrediting bodies, I would rather see legal academics engage in this work than have it imposed wholesale by nonlawyers. Let us decide whether curriculum mapping or capstone courses or experiential learning or whatever are helpful or not, and let us decide whether/how to use these tools. My own view is that some of this stuff is helpful and should be embraced, but I recognize that there is a legitimate debate on that point!

  8. Brett Bellmore says:

    Why bother accrediting the law schools at all? Just test anyone who wants to practice law in a state, and never mind how they think they got the knowledge to pass the test… Either they did, or didn’t, get it.

  9. A.J. Sutter says:

    Dave

    Thanks for the reference. I wasn’t familiar with her work, but having taken a look at some of her articles on SSRN, I will indeed refrain from hijacking this thread with the deconstruction and critique they would otherwise have inspired. Suffice it to say that she isn’t concerned about the same folks being undersupplied as the ones I mentioned above. (Let the record show that I wasn’t thinking about “T&E work for the poor,”[@27] either.)