For many law students there are too few jobs available that pay enough to cover the cost of law school. There are also too few lawyers who are willing to work for what most Americans can afford to pay.
Put these two facts together, and it is clear that the problem is not that we have too many lawyers. We don’t have enough lawyers who charge modest fees. We also don’t have enough law schools that lawyers who will earn modest fees can afford to go to.
The one-size fits all approach to legal education that is reinforced by ABA accreditation standards – and to a lesser extent by other organizations such as the AALS – perpetuates this problem. The system works very well for clients who can afford to pay the high fees of heavily indebted lawyers. It does not work so well for everyone else.
The ABA can instead expand access to legal services by encouraging some law schools to develop a different business model that provides a high quality legal education at a lower cost. Clients’ needs and resources differ, lawyers differ and law schools should differ as well.
There are many areas where there should be more flexibility in ABA accreditation standards. I will discuss here only one of them: the faculty, which is for many law schools the single largest expense. The principal role of the law professor in the school is to teach. Part of being a good law teacher is active participation in the legal profession, whether as a scholar, as a lawyer or a judge, as a government official or in some other capacity. I have not seen credible evidence, however, that one of these categories of professional endeavors outside the classroom makes for better law teachers than the others. They each improve our teaching in different ways.
One of these endeavors outside the classroom – legal scholarship – must be subsidized by the law school. Unlike medical research and some other areas of scientific work, there is very little outside funding for legal research. Law schools have to pick up the slack by paying professors more. In return these professors agree to limit their outside practice of law (no more than one day a week in most law schools). A professor’s substantial commitment to legal research may even require absence from the classroom some semesters, which requires the law school to hire more professors to teach the courses. And then there are the other expenses that go along with research – visiting speakers, travel, research assistants, technology, etc.
Other professional endeavors outside the classroom – practicing law, consulting, judicial or government employment – are different.
Legal research is very important to our profession, but it is expensive and it is paid for almost entirely by law schools. Many law schools can afford to have most of their faculty members engaged in research. These schools will charge a substantial tuition (a few have large endowments and/or annual giving as well). Graduates of these schools will need jobs that pay well. Some of these graduates will represent the poor and the middle class, but many won’t.
But not all law schools need to have professors who engage in scholarly research. Some law schools should rely principally on faculty whose professional endeavors outside of the classroom involve private practice, judging or government work. Some law schools should split their faculty roughly fifty-fifty between legal research and law practice.
Most important, this issue, and others in legal education, should be decided by the schools themselves, and the students who choose to attend those schools. States through bar examinations and other means can determine if those students are fit to practice law. Regulating law schools is a very indirect way of accomplishing this end. Regulation is also counterproductive if the regulation increases costs so much that legal education and services of lawyers are limited to the top echelons of society.
Richard: I would like to see more of the flexibility that you describe. But when you say that the "ABA" needs to de-regulate law schools, it makes me wonder about who controls the accreditation function. The key players strike me as 50% faculty/deans and nearly 100% oriented to the status quo. Would you say that the accreditation function has been effectively captured by the faculty?
Posted by: John Steele | February 06, 2012 at 05:29 PM
In the US, state legislatures could quickly deregulate law schools by lifting the requirement present in most states that only those who graduate from ABA accredited schools can sit for the bar exam. In place of the ABA accreditation screen each state could identify the law schools whose graduates meet the standards of that state, or could drop this filter altogether. Graduates of brick and mortar US law schools that lack ABA accreditation typically fail the bar exam at higher rates than graduates of ABA accredited schools, but it's not hard to imagine schools similar in concept to the Executive MBA programs offered by most prestigious business schools that could attract and graduate students competitive with traditional brick and mortar graduates.
Posted by: Ray Campbell | February 06, 2012 at 06:03 PM
Has the ABA process been captured by faculty? To a large extent yes.
No requirement for admission to the bar should depend upon the views of the ABA about a particular law school. The ABA is a well respected trade association but is a trade association nonetheless. The ABA should not be permitted to dictate who can practice law. That is the job of the state legislature and the courts.
RWP
Posted by: Richard W. Painter | February 06, 2012 at 06:31 PM
Richard -- As you know, I favor making the basic law degree an undergraduate degree. At the same time, I agree that a trade association should not dictate who can practice law. And I agree with Ray that licensing examinations should be open to graduates of non-accredited schools. But, like Milton Friedman (and as I argued in The Professionalism Paradigm Shift), I see value in private entities providing a certification function that in the case of legal education would signal to potential students that the certified schools offer certain minimum levels of services.
Posted by: Russ Pearce | February 06, 2012 at 11:48 PM
Because the state supreme courts have the authority to determine who is qualified to apply for admission of the bar, they would have to be persuaded to open the bar admissions process to graduates of non-ABA accredited schools. For example, Illinois Supreme Court Rule 703 provides: "each applicant shall have pursued a course of law studies and fulfilled the requirements for and received a first degree in law from a law school approved by the American Bar Association." One justice dissented to the adoption of this rule, which you may find of interest:
JUSTICE HEIPLE, dissenting:
By the amendment to Rule 711 and by Rule 703, which was previously adopted, this court recognizes only law schools which have been approved by the American Bar Association. I both dissent and object to these rules because they represent an improper delegation of a governmental and judicial function to a trade association of lawyers.
The American Bar Association is a voluntary association of dues paying lawyers (currently $225 per annum) that exists for the benefit of its members. No lawyer is required to belong. Most do not. It clothes its parochial existence with an overlay of public activities and pronouncements designed to convince the general public that it is interested in the general welfare. That its primary focus is the benefit of its members, however, is beyond question. That the American Bar Association is a trade association warrants neither commendation nor condemnation. As a trade association engaging in improving the status of lawyers and lobbying Congress and the State legislatures, it is on a par with any other trade association. It is decidedly not, however, an arm of the State of Illinois nor of this court.
It is improper for this court to assign and delegate to that organization the ultimate decisionmaking function of deciding for the State of Illinois which law schools warrant official recognition. It would be proper, of course, for this court and its Board of Law Examiners (now, Board of Admissions to the Bar) to consider and weigh the evaluations of the American Bar Association in considering which law schools are to be approved. The work of the American Bar Association in evaluating law schools could be considered as relevant evidence in that regard. No objection could be raised to that procedure.
This court, however, has no right to delegate its decisionmaking function to the American Bar Association, the Teamsters Union, the Republic of Uganda or any other such body or group. If the rule asserts a valid principle of law, then this court could as well assign all of its decisionmaking functions to others who might be considered experts in their field.
For the reasons given, I respectfully dissent.
Posted by: Laurel Rigertas | February 07, 2012 at 11:38 AM
I am fine with private entities providing their views on certification, whether it be the ABA, the Federalist Society, the American Constitution Society, the ALI or any other organization that might wish to engage in that endeavor. Such information helps inform the market place.
I am not fine with the state choosing any one of these certifications and incorporating it into legal restrictions on who can and cannot practice law.
In the financial field, the SEC incorporated the ratings of debt securities by Moody's and S&P into a broad range of regulations. Congress ordered these rules to be rescinded in 2010. I wonder why.
Posted by: Richard W. Painter | February 07, 2012 at 12:01 PM
Dear Richard,
New York allows graduates of foreign law schools, as well candidates who have a mix of law school and apprenticing to sit for its bar exam. California allows graduates of unaccredited law schools as well as apprentices with four years experience to sit for its bar exam. However, I do not believe that the legal market is drastically different in these states than in those where one can only work as a lawyer if he/she has graduated from an ABA-accredited law school. Am I incorrect about this? Is it your view that New York and California have not gone far enough in terms of deregulation?
Posted by: Milan Markovic | February 07, 2012 at 02:57 PM
State statutes and rules of court should remove all reference to the views of private organizations such as the ABA. If the state wants to establish standards for lawyers (which it should), or legal education (which it might), the state should establish its own standards and administer them itself.
Posted by: Richard W. Painter | February 07, 2012 at 06:00 PM