Whither Law School Accreditation?

Over at ToTM, Josh Wright has a post on the ABA’s accreditation role. He’s responding to David Bernstein’s post here. David and Josh both seem to support attempts to strip the ABA of its accreditation role, in whole or part. The disputed provisions are:

  • 205(c): “Except in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure.”
  • 405(c: Law schools “shall afford full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members.”
  • 603(d): “Except in extraordinary circumstances, a law library director shall hold a law faculty appointment with security of faculty position.” (Comment: ” The granting of faculty appointment to the director of the law library under this Standard normally is a tenure or tenure-track appointment.)”

Obviously, the group of Deans who wrote this letter aimed it carefully. Indeed, the letter has been read by many folks (Leiter; Manne) as a rather targeted campaign against over-reaching by the ABA into what are seen as institutional prerogatives. But now that I’ve finally gotten around to reading the letter and the commentary, I simply don’t see the limiting principle here. This is about whether the ABA should be permitted mandatory accreditation power, not whether some aspect of that power is efficient or not.

Indeed, the arguments in the letter work as well (if not better!) against standard 405(b): “The law school shall have an established and announced policy with respect to academic freedom and tenure . . . “? I imagine that if you were to ask many Deans who should decide if their institution ought to have a tenure system, they’d say: “me.” When pushed, they’d add “and the folks who pay the lighting bills too.” And their arguments (flexibility; efficiency; cost) would be precisely the same as in the clinician context.

Thus, Geoff’s Manne’s argument here seems somewhat wrong to me. This could very well be the thin end of the wedge, directed at those segments of the law school community least able to speak up for themselves. (Yes, Niemoller’s poem is an obvious link, although I think it is crass in this context. )

It seems pretty clear that were the ABA to lack the power to de-accredit schools for employment practices, some schools would choose not have tenure at all for law professors. I imagine the number of such schools would be small (due to market pressure), but it wouldn’t be zero.

This post isn’t going to be a defense of tenure. But I thought it might be worth it to stop for just a moment to consider the arguments for why have an ABA accreditation process at all. Tenure is part of what it guarantees the world. It also gives us clinical legal education (meaning legal services for the poor, subsidized by law student tuition), law libraries of a certain size, etc.

I don’t think it can be denied that the primary economic effect of the process is to raise the cost of legal education and ultimately the cost of legal services. This is a problem because the poor will increasingly be priced out of the market.

But that doesn’t end the story. Unregulated market outcomes – what the Law Deans presumably would want – aren’t necessarily welfare maximizing. They just often are. So I suppose we have to ask: is there any strong evidence of market failure in the law school industry (inputs & outputs) that would justify continued intervention by the ABA.

I’m unconvinced by the argument that we need accreditation to protect consumers from bad lawyers. This seems like an expensive way to work a consumer protection regime: why not just make the Bar harder to pass? (Yes, I know that I’m parting ways with Solove. But he is, I think, missing the trade-off problem here. We’ve three options: regulate law school so that it is hard; rejigger the Bar until it is a real barrier, or change the rules to make malpractice claims cheaper to bring and easier to win. Of the three solutions, making the Bar much harder is the most efficient by a mile. Screening is almost always cheaper than remedial action. Screening by a licensing exam is surely better than micro-managing the content of a legal education. The expensive version of the legal education is a signal to potential employers of diligence and acumen, not (really) proficiency in basic legal skills. )

The other justification for continued ABA oversight that I imagine folks have in mind is a lack of demographic diversity in graduating classes. This is a serious problem, not least because lawyers continue to retain a significant amount of power to reshape society in their own image. But why would we want to assume that a deregulated legal education industry would be weaker in this respect than one goaded by the ABA? The thought has to be that the relevant players aren’t sufficiently motivated to create a diverse class. But even if that were so – and I don’t think it is at most institutions – the accreditation regime is a notoriously blunt hammer to bring to the table. Not only is the process episodic and retrospective, but the sanctions aren’t targeted at the right folks. It’s a bit like holding the city government responsible for the actions of individual police officers. Sure, it has some corrective effects, but not as strong as when you hold the cops personally liable.

In sum, I’m just not convinced by the arguments for continued ABA oversight over the employment and acceptance practices of law schools. But the question is a close one – and for some accreditation practices (like those for the public good like law library) I think the balance favors a continued ABA role.

Is there a case to be made that I haven’t considered?

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3 Responses

  1. Nate Oman says:

    Dave: I am skeptical of your claim that screening is always cheaper than after-the-fact sanctions. It seems to me that screening has two major down sides. First, it requires an enormous amount of information by the screeners in order for them to know what they should or should not screen out. Second, it is massively over-inclusive as many folks that should not be screened nevertheless must bear the costs of going through the screening process. After-the-fact sanctions, by contrast don’t require that we have perfect knowledge of the ways that one might screw up ex ante, only an ability to clearly identify screw-up’s ex post. Likewise, although all parties will likely bear some costs even under an ex post system (eg insurance) the costs will more closely correspond to their actual risk of damage to others. It is the difference between regulating product saftey via product’s liability torts or via ex ante safety regulations. The tort system strikes me as a better option. Transformed to the legal context, rather than making everyone who wants to be a lawyer go through the rigamarole of the the bar, etc. etc., just lower the barriers to entry but make it much easier to sue for malpractice. What I suspect you would end up with is a system of informal, flexible, but highly effective “regulation” via insurance contracts.

  2. As one who thinks that law school is too long, that the legal clinics tend to too narrowly define the “public interest” and that on-line resources are diminshing the importance of the law library, I think the states put too much reliance on law school accreditation and not enough thought into exactly what they need from the law schools. This problem is only maginfied with the ABA as the accrediting agency. The recent re-focus of their accreditation standards only feeds into the mindset of many of us that the ABA has become an organization more interested in assuaging liberal guilt than representing the interests of lawyers.

    A few years ago, the President of the ABA spoke at a DC Federalist Society luncheon – when he asked how many of us were members, maybe a third of us raised our hands. And I believe that if law firms weren’t paying the dues, that number would have been significantly decreased. Beyond the excellent Tax Division, the ABA just comes across as a lot of fluff and not at all deserving of its prominence in our legal structure.

  3. Elliot Reed says:

    Dave – one thing you haven’t considered is whether law school should be kept at all. Requiring an additional three years of school after college is an enormous entry barrier, yet I have never found a convincing explanation why the undergraduate degree is a necessary prerequisite.

    Given that the third year of law school is widely considered to be a waste anyway, the barriers to entry into the profession could be enormously reduced by eliminating law school in favor of an undergraduate major in law.