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ABA Accreditation Standards Supersede Contrary State Laws

according to a coalition of left-wing advocacy groups.

As regular VC readers will recall, I wrote an op-ed for the Wall Street Journal noting that the ABA's new accreditation standard 211, which is due for a final vote this Summer, requires law schools to engage in racial preferences, even when it's contrary to their own educational judgment, in violation of the Grutter opinion. Moreover, the standards seem to require law schools to violate federal and state law if laws stand in the way of meeting ABA diversity requirements. (For the full argument, see the op-ed and related VC posts.)

Following publication of the op-ed, several conservative organizations wrote to the Department of Education, requesting that it divest the ABA of its authority to accredit law schools for federal purposes if the ABA goes through with enforcing Standard 211.

A coalition of left-wing advocacy groups has written its own letter to the Department of Education, defending the standards.

The most shocking of this letter's many flaws is the claim that to the extent the ABA standards conflict with state constitutional or statutory law, the ABA standards trump state law! [This relates to the following ABA Standard 211 language, which seems to order law schools to violate the law: "The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."] I couldn't believe that anyone would make such an argument with a straight face, but here it is:

Nothing in Standard 211 requires law schools to achieve a fixed number of under-represented students. The interpretative language of the Standards also makes clear the Council's practice to look at the actions of individual law schools in their totality rather than in a rigid, inflexible manner. In any event, as in the case with federal statutes and executive orders, such provisions supersede state laws and constitutions. Particularly, when the accrediting body is overseen by the U.S. Department of Education by virtue of the recognition process, the matters involved in the establishment and imposition of accreditation standards take on the color of federal action.

Come again? The letter writers are claiming that if the Federal Department of Education permits a private organization to accredit law schools, the private organization's standards implicitly become part of federal law, and thus supercede state law under the Supremacy Clause. The chutzpah, the absurdity, the audacity of this argument simply floors me.

I wonder if ABA spokespersons are willing to state on the record that once Standard 211 is in place, the ABA will not adopt the position that it will be a "higher law" than any laws that may conflict with efforts that ABA accreditation committees will try to impose on law schools?

As noted above, the letter has many other flaws. For example, acccording to the letter, the new ABA diversity standard will not require the admission of minority students unless they "are fully capable of succeeding in the educational program." In fact, even under current diversity efforts, over 42% of all African American matriculants either fail out of law school or never pass the bar. At the bottom 2/3 of law schools, the (approximate) figure is over 51%. At individual law schools within the bottom 2/3, the relevant percentage is undoubtedly over 60%, and perhaps much higher at particular schools.

Just to make it clear that the ABA is not interested in whether admitted minority students are likely to succeed, the ABA is also poised to undermine rule 501(b), which states that "A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar." A proposed "interpretation"* of this rule is pending that directs law schools to ignore the rule if it conflicts with the Standard 211. So, according to the ABA, it's not only okay, but actually required to admit students whom you know are likely to fail—but only if they are minority students. It's hard to imagine that the ABA could come up with a more pernicious policy if avowed racists led the organization.

The coalition of organizations that are supporting the ABA seem to me to be supporting racial preferences for their own sake, without regard to whether they are lawful in a particular context, and, more surprisingly, without regard to whether they will actually help their purported beneficiaries. The ABA has a stake in ensuring that many minority students matriculate in law schools: after all, the ABA would have a hard time justifying the various monopoly privileges it gets from the government if it didn't ensure that law schools admitted many minority students, at least some of whom will eventually become lawyers. But what stake do "civil rights" organizations have in forcing third and fourth-tier law schools to matriculate African American students who will be giving up other career and educational opportunities for a (sometimes way) less than 50% chance at becoming a lawyer?

* Proposed Interpretation 501(2): "A law school's admission policies shall be consistent with Standards 210 and 211."

Related Posts (on one page):

  1. On the ABA's "Well-Respected Tradition of Accrediting Law Schools":
  2. ABA Accreditation Standards Supersede Contrary State Laws
Mike BUSL07 (mail) (www):
I'm glad that the approach the ABA is taking is so obviously incompetent and ham-fisted. It draws precisely the right kind of attention to the issue. Even people who earnestly support affirmative action in the abstract cannot (I hope) approve of measures that by their own terms prioritize appearances over justice and efficacy.
4.14.2006 9:06pm
Rodger Lodger (mail):
Could somebody please post the impact of federal accreditation? Without knowing that, I cannot tell what the significance of the ABA having a policy is.
4.14.2006 9:24pm
Dishman (mail):
"At the ABA, we are the law."
4.14.2006 9:31pm
davidbernstein (mail):
My understanding is that if an institution of higher learning is not accredited by a body approved by the DOE, students attending that school aren't elibible for federal student loans.
4.14.2006 9:33pm
Elais:
In looking at the glass half full, wouldn't this mean that despite the low number, a percentage of minorities actually succeed? Is there focus on how to improve the success rate of minority students? I wouldn't not like this to be simply dismissed outright when one of the arguements against it is that there is a high failure rate. That alone isn't justification to eliminate something.
4.14.2006 10:02pm
Mike BUSL07 (mail) (www):
Elais:


[A high failure rate] alone isn't justification to eliminate something.


This is not an abstract question. If we accept as a premise that it's a good idea to have more minorities become lawyers, then the next logical question would be - what is the most efficient way of doing that? What DB illustrates is that the ABA proposal is a grossly inefficient way of achieving its stated goal. That is, at best, it's inefficient. At worst, it's in bad faith - a measure taken for appearances only, with disregard for its outcome.

A conclusion that something has a higher failure rate than a broad range of less costly alternative, is a great reason to scrap it.
4.14.2006 10:07pm
Mike BUSL07 (mail) (www):
alternatives
4.14.2006 10:08pm
John Lederer (mail):
I am not sure that that the argument that a federally designated accreditation agencies's standards trump state law is bogus.

I seem to recall some cases in where federally recognized industry safety standards have trumped state law, though possibly they have been commerce clause based (and the commerce clause is a bit of a beast to itself).
4.14.2006 10:44pm
Cornellian (mail):
Seems like a really weak argument to me, but I note your boldface portion refers to "federal statutes" as well. What's the argument for superceding federal statutes?
4.14.2006 11:01pm
stealthlawprof (mail) (www):
Rodger and David --

The ABA accreditation will be important to independent law schools (not affiliated with a university) for purposes of student loans. However, for other law schools, the university's institutional accreditation (with a regional accreditor) will suffice for federal loan eligibility. (My understanding is that some independent law schools also have regional accreditation, but I cannot say that with certainty. Those without it would have to move quickly to get approval from some Dep't of Ed approved accreditor if the ABA lost its status.)

Where ABA accreditation becomes particularly important is with its acceptance in all fifty states for purposes of taking the bar examination. Withdrawing Department of Education recognition of the ABA as an accrediting agency would not directly alter the universal acceptance by the state bars. I suppose the expectation is that withdrawal would cause the state bars to revisit their automatic acceptance of the ABA.

Regrettably, the impact of a withdrawal would disproportionately hit students at a small group of schools (there are about 20 independent law schools as I recall). They are not particularly powerful or influential schools, so fixing the problem might not move expeditiously.

The other problem of course is that if some states start to question the ABA accreditation, someone must quickly step into the breach with an accrediting system the states also universally accept or law graduates will face a crazy quilt of approval standards adopted by the state bars individually. Adopting AALS membership does not solve the problem, that too cuts out students at an array of lesser known schools and -- amazingly -- the AALS is even flakier than the ABA. (It was the policy of the AALS that led to the Solomon Amendment.)

All that said, the ABA's proposed policy is insane for the reasons David has stated. If it is adopted, perhaps the time has come to figure out how to replace the ABA, recognizing the difficulties I have outlined above.
4.14.2006 11:09pm
xx:
Cornellian,

I think you're parsing the sentence incorrectly. The advocacy groups appear to be arguing that the ABA provision supercedes state law in the same way that federal statutes and executive orders supercede state law. They don't purport to claim that the ABA rule supercedes federal statutes or executive orders.
4.14.2006 11:12pm
PaulV (mail):
xx,
ABA standards would also violate Federal Court decisions
4.15.2006 12:03am
student of law (mail):
Deeply impressive. They have managed to top the FAIR professors in fashioning a legal argument premised on "it's constitutionally required because, dang nab it, it's something I personally want."
4.15.2006 12:34am
xx:
PaulV - the first two sentences of the quoted paragraph appear to be part of the advocacy group's argument that the standards do not violate federal case law. E.g. they don't require fixed numbers, and they are individually calculated to meet each school's needs.

The advocacy group may well be wrong about these argument, but that appears to be their argument, not that the ABA rule supercedes federal statutes or court decisions.
4.15.2006 1:50am
Elliot123 (mail):
Elais,

A 50% failure rate is a very high cost for a 50% success rate. If admission committees don't think a candidate can become a lawyer, what possible reason is there for admission? Those people are being used to create a pretense, and the opportunity cost they pay is huge.
4.15.2006 2:05am
TO:
I think it helps to picture the ABA as a really cool shadowy organization like the Skulls, instead of a whiny self-important group like it actually is.

I offer two quotes from the Skulls:


Senator Levitt: Our rules supercede those of the outside world.


and

Judge Litten Mandrake: Here is the acceptance letter to the law school of your choice.
Lucas: But I haven't even applied anywhere yet.
Judge Litten Mandrake: Imagine that.


I think these are conclusive proof that the ABA is trying to be as cool as the Skulls, but it's probably not happening for them.
4.15.2006 2:33am
Cornellian (mail):
Oops, I was reading that excerpt a bit too quickly and missed the "as is..." so at least they're only arguing the policy supercedes state law, not federal statutes.

A pretty crazy idea, though I suppose no more crazy than granting sovereign immunity to tort suits because you made something for the government. Still, given the current composition of the Supreme Court, I'd say that argument is going nowhere fast. Heck, that argument would fail in a Supreme Court of 9 Souters, the only difference being it would be rejected in 50 pages, instead of in the 10 pages that Roberts will write if it ever gets that far.
4.15.2006 3:15am
Vorn (mail):
I don't see the supremacy issue here.

A state is free to make choices that result in lawschools within the state losing accreditation. For example, a state could choose to fund public lawschools inadequately, thereby resulting in a loss of accreditation, say, due to inadequate library facilities. A state could have zoning ordinances that as a practical matter prevent private lawschools from constructing adequate facilities for accreditation. States do not have a right to have institutions in their state be accredited regardless of the choices made by the state legislature.

The state is perfectly able to have and enforce any policy it likes without being trumped by state law. As long as it is willing to live with the financial and other consequences flowing from its decisions. Since state law is not being trumped, where is the supremacy issue?

At most, I see the proposal by the ABA making certain policy decisions that some states would like to possibly less convenient. But since when do states have to have maximal convenience with respect to implementing their policy preferences?

A state that was determined not to follow ABA policies with respect to accreditation does not have to. It can set the licensing requirements for lawyers however it pleases. It could make it so that non-ABA accredited lawschools within the state are perfectly adequate for practice within the state.

Of course, one could argue that there is not merely "inconvenience" involved, but the loss of federal education funds. But, in that case, I do not think that the ABA's argument is that its policies with respect to accreditation take the "color of federal action" is absurd. These standards trump ONLY with respect to accreditation, not as a general manner. And isn't that the way it MUST be? Imagine the following statute passed by the state legislature. "No private organization shall deny accreditation to a lawschool within the state due to inadequate library facilities." Now, certainly the ABA wouldn't be required to go along with this, would it? You aren't arguing that the states can FORCE the ABA to accredit lawschools, are you?

Overall, I think that Bernstein is overreacting. If the Federal Government does not like the standards set by the ABA, it could either issue it more detailed guidelines in setting standards or withdraw accreditation. I don't see how the argument that states can unlaterally force the ABA to adopt certain accreditation standards holds up.
4.15.2006 3:52am
Vorn (mail):
That following in the last paragraph should be changed from:
"withdraw accreditation"

to

"withdraw accreditation power from the ABA"
4.15.2006 3:53am
Bruce Hayden (mail) (www):
The problem that the ABA faces with this proposal is that it would be illegal in several states, notably California. Can you imagine Boalt Hall or UCLA losing accredidation? (what would Eugene do for a job to support this blog then?) The idea, I think, is to give them cover - arguing that no, California, and some other states, may have this silly type of law, but it won't apply here because, well, it is for a good cause... Cover so that the delegates can pretend that this isn't going to have the effect that most of us here think it will.

But ask yourself, what percentage of the ABA delegates bought into the FAIR arguments? I would bet a distinct majority - which is why it doesn't come close to repesenting the legal community. The same people who bought into the FAIR arguments are likely to buy into this Supremecy argument, and vote for the provision.

I am not convinced that Justice Souter would reject this, nor Justice Ginsburg. The rest though, highly likely. Leaving it somewhere between 7-2 and 9-0.
4.15.2006 5:21am
ABA Spokesperson (mail):

I wonder if ABA spokespersons are willing to state on the record that once Standard 211 is in place, the ABA will not adopt the position that it will be a "higher law" than any laws that may conflict with efforts that ABA accreditation committees will try to impose on law schools?


Our standards are not only superior to state laws, they were in fact written on the hearts of man by the finger of God.
4.15.2006 7:37am
Public_Defender (mail):
"The chutzpah, the absurdity, the audacity of this argument simply floors me. "

As a law professor, you are giving your students a horrible example about how to make a legal argument. If the ABA's argument is so obviously wrong, you could put together a citation or two to prove your point.

You may be right (I don't know enough about the subject to judge), but you are not obviously right. I can see the argument that standards promulgated according to a federal mandate could trump state law.

It's irresponsible (and bad lawyering) to make such a strong assertion with nothing to back it up except your outrage.
4.15.2006 7:41am
Federal Dog:
"It's irresponsible (and bad lawyering) to make such a strong assertion with nothing to back it up except your outrage."


For goodness sake, this is a web forum, not a court of law or a law school classroom.

Sheesh.
4.15.2006 8:41am
AppSocRes (mail):
I'm interested in the process that resulted in Standard 221: Has the ABA been hijacked by a cabal of left-wing looney tunes? Or is the sentiment behind this sentiment widespread among the rank and file of the ABA? If the latter, then is the ABA a true representative of the socio-political character of the US legal profession considered as a whole? If not, then are there no alternative professional legal oprganizations that might replace the ABA?
4.15.2006 11:16am
Public_Defender (mail):
federal dog,
Yes, this is a blog, but part of what makes it a good blog is that the authors generally back up what they say. Here, Professor Bernstein fell below that usual standard.
4.15.2006 11:20am
A. Zarkov (mail):
Elliot123:

"If admission committees don't think a candidate can become a lawyer, what possible reason is there for admission?"

Easy. They want the tuition money and other funds that come with students. Whose interest do you think law schools have in mind when take actions?
4.15.2006 11:41am
A. Zarkov (mail):
The ABA is telling the states they must change their rules or else it will not accredit the law schools in the states that do not comply. I don't know why the ABA should not be free to do that if it so chooses. But it's the states that grant the licenses to practice law. The states can tell they ABA: "So don't accredit our schools, we will make our own rules about what schools you can attend to qualify to take the bar exam." Why should you even need to go to law school to take the bar exam? Obviously students don't learn enough in classes to pass the exam, why else would they take bar review courses? Then again the former dean of Stanford law failed California bar. States could simply require applicants to the bar exam to have experience working at law firm. To become a stock broker you work in a brokerage firm, and then take the series 7 exam to get your license. What real purpose do laws schools serve?
4.15.2006 11:56am
davidbernstein (mail):
You can take my comment on the letter's legal argument as meaning that I think that merely stating the argument is a sufficent rebuttal. Anyway, the letter itself simply makes a legal assertion, without any case citation or other way of knowing where they got the idea that universities would be bound to adhere to accreditation rules over state law, just because the DOE has endorsed the accreditor. The letter might as well say, "the president must be an alien."
4.15.2006 12:05pm
doesn't know (mail):
Can someone with knowledge please comment on the degree to which the ABA accreditation process is or is not coopted by the AALS and the legal professoriate?

For example, are the leadership positions within the process held by professors and deans, or by practicing lawyers?
4.15.2006 1:02pm
Alan Meese (mail):
For what it's worth, I agree with Professor Bernstein that the preemption argument made by the left wing groups refutes itself. Note also that the party asserting Federal Preemption bears the burden of proof. The letter by the groups cites no authority for the proposition that action by a federally-recognized accrediting agency ipso facto preempts contrary state law. Plus, any effort by Congress to delegate such regulatory authority to a private and self-interested entity would present Constitutional problems.
4.15.2006 1:11pm
James Lindgren (mail):
I have done a few bar passage studies for particular law schools. In some schools, there are a few students admitted with credentials so low that no student with LSAT scores that low had EVER passed the bar from that school. That is a small group, and not every student in that group was a minority.

For a larger group of admittees, fewer than 25% of those who stay on to graduate pass the bar. If one included dropouts, the bar passage rate would be even lower. Generally, African-Americans do as well (or nearly as well) in passing the bar as their entry credentials would predict.

As I recall (I don't have the Census and CPS data handy and it has been a long time since I looked at it) between 1960 and 1994, the percentage of practicing African-American lawyers over the age of 30 had grown much less than people would guess, from about 2% of lawyers in 1960 to less than 3% of lawyers in 1994, despite (as I recall) roughly 7-8% African-American law school admissions starting in the early to mid-1970s.
4.15.2006 1:14pm
xx:
"For what it's worth, I agree with Professor Bernstein that the preemption argument made by the left wing groups refutes itself."

But it doesn't. The position as applied may well be very, very wrong, but whether its wrong is contingent on both the factual setting of the accredation process and the relevant case law on when the standards of private associations are deemed incorporated into federal law.

Imagine that the Congress passed the following law:

Statute 1: "All law schools in the United States are hereby required to follow ABA accredation standard 211. Failure to comply with 211 results in criminal sactions."

If this were the law, there would be no question that the supremacy clause applies.

What if, instead, Congress changes the law to the following:

Statute 2: "Compliance with ABA accredation standard 211 is entirely voluntary. However, law schools that do not comply are not permitted to hire any professors or admit any students."

Under this statute, compliance is nominally voluntary, but is functionally necessary. A law school cannot in any meaningful sense be said to exist if it has no teachers or students. Presumably in this case too, then, the supremacy clause attaches.

On the other hand, Congress could pass a law that is truly voluntary, and with which complaince is meaningless:

Statute 3: "Resolved: Abiding by the ABA accredation standards is generally good."

It is certainly hard to read this statute as pre-empting state regulation. It merely says that complaince with the ABA standards in general is a good thing. Not that it is necessary, or that it excuses noncompliance with state law.

Presumably the actual impact of federal regulation is somewhere between Statute 2 and Statute 3. Accredation has some tangible effect on law schools, but whether this effect makes the statute de facto mandatory is a factual question. Meanwhile, the legal standard for determining whether a statute if more like 2 or 3 is also an open question.

Again, the advocacy group's argument may be totally and entirely wrong, but its contingent on the facts and the law. It is not false on its face.
4.15.2006 1:36pm
John Lederer (mail):
Wait a minute. Let's imagine a good hypothetical:

Federal law: "The Secretary of the DOT shall not fund any highway project that does not meet the Secretary's standards for safety and quality.."

USDOT regulations: "All highway construction projects shall mee the standards of a designated standards body for the material involved..."
"...The American Association of Concrete Producers is deignated the standards body for concrete pavement."

AACP standards:"...concrete pavement shall not be less than 20% Portland cement by weight"

Wisconsin State Law; "Concete pavement may have not less than 10% concrete by weight"

Is there any question on what the outcome should be if a highway paver argued that a project could not be defunded for having 12% Portland cement"?

Whay is failure to mee the ABA standard (if enacted) different (aside from possible unconstitutionality)?

We have lots of instances, I think, where various standards have been delegated to industry groups. The trend, for instance, in building, electrical, and plumbing codes is to delegate to the ndustry standards bodies.
4.15.2006 2:09pm
Cornellian (mail):
"If admission committees don't think a candidate can become a lawyer, what possible reason is there for admission?"

Easy. They want the tuition money and other funds that come with students. Whose interest do you think law schools have in mind when take actions?


To be fair to law schools, there's nothing in general wrong with a business accepting your money without requiring you to prove that it's money well spent. I can go spend $5,000 on ski equipment tomorrow without anyone asking me whether I have the physical coordination to ski without killing myself. Anyone willing to put the effort into getting admitted to law school (even the very low end unaccredited ones) without doing any research on that school's bar passage rate is probably so foolish they're going to lose their money one way or another. In addition, plenty of people go to law school without intending to make a career of practicing law. You don't have to practice law or even be admitted to a state bar in order to be a law professor. Plenty of politicians have law degrees but never practiced law, or stumbled incompetently through practice for the shortest possible time pending the commencement of their first election campaign.
4.15.2006 2:19pm
xx:
John Lederer: The question is whether complying with a private association standard, as incorporated by federal law, is a defense against a state law violation. In your hypothetical, there is no violation of state law. How is it applicable?
4.15.2006 2:56pm
msk (mail):
Tangential to the question of whether school applicants are likely to succeed, intro to a 2000 ed. logic problems book for those preparing for GRE/LSAT:


On the GRE, logic games do not follow any preset sequence of difficulty. Instead, the computerized testing system initially presents [questions of] average difficulty; subsequent questions (and games) depend upon your responses to earlier ones. As you respond correctly, the test poses more challenging questions; incorrect responses prompt easier subsequent questions. ... ... ...


Going back to the "Skulls" fantasy, you could have decades of pre-identifying people who seem incapable of logical thought, feeding them into professional schools.

At the same time, you would create an underclass of very bright people trapped below glass ceilings, told they must have emotional problems that prevent them from passing key, career-bender exams. Sort of a secret weapon masquerading as "fair" computer scoring.

In fact, if you require exams to be given only via computer, villains could set the flicker rate or some other feature (in the greater societal interest of testing human tolerance for harrassment).

Sorry about the long-term dossier fantasy, but we need to keep major exams reviewable by more than just teams that might have hidden agendas.
4.15.2006 3:05pm
Public_Defender (mail):

You can take my comment on the letter's legal argument as meaning that I think that merely stating the argument is a sufficent rebuttal. Anyway, the letter itself simply makes a legal assertion, without any case citation or other way of knowing where they got the idea that universities would be bound to adhere to accreditation rules over state law, just because the DOE has endorsed the accreditor. . . .

OK, but the letter didn't say describe counter-arguments by saying, "The chutzpah, the absurdity, the audacity of this argument simply floors me."

It's one thing to say that you are right. It's quite another to say that no thoughtful person could possibly disagree. The latter requires a much stronger argument.

You could at least explain why a federally sanctioned decision (ABA standards) do not trump state law. John Lederer gave a good example that would seem to say that the ABA is right. Why is his example wrong?

The problem with the post is that it will not persuade anyone of anything. You've said you think the ABA is obviously wrong, but you haven't explained why the ABA is wrong. If it's so obvious, it should be easy to explain.

Maybe you are right. But your argument does not prove itself.
4.15.2006 3:15pm
Dishman (mail):
I work in Aerospace. A lot of FAA technical standards have been delegated to a government/industry consortium called RTCA. Even with the FAA as a participant in drafting the standards, they do not become effective until they have been rubber-stamped by the FAA. They have no force until recognized by the certifying authority.

Does the ABA claim to have Dept. of Education as an official participant in their standards setting process?
4.15.2006 3:16pm
A. Zarkov (mail):

To be fair to law schools, there's nothing in general wrong with a business accepting your money without requiring you to prove that it's money well spent.



I very happy to see you refer to laws schools as a "business," because that's what they are, and we should not lose sight of that important fact. But I don't think it's quite like buying a set of skis. Anyone can buy ski equipment-- all you need is money. On the other hand, students applying to law school are subjected to a vetting process. They must take the LSAT, submit transcripts, and jump through other hoops. And of course pay money, and lots of it. So a student who gets accepted to a law school has a reasonable expectation that he's qualified to complete his courses and pass the bar. Otherwise why does he have to "prove" he's qualified by taking tests? If the law school that accepts him is highly ranked, and highly selective, why should a student have to research the school? Even if he does, will the school tell him that it applies different (and lower standards) to members of racial minorities? Will it tell him that lower standards mean a lower probability of completing course and passing the bar?

I suppose there are some students who attend law school without any intention of taking the bar or practicing law. But surely that's a small number. Why would someone pay $120,000 and forgo income just to attend law school?
4.15.2006 4:51pm
Brett Bellmore (mail):
"Statute 1: "All law schools in the United States are hereby required to follow ABA accredation standard 211. Failure to comply with 211 results in criminal sactions."

If this were the law, there would be no question that the supremacy clause applies."


One would think that the supremacy clause only applied to laws that Congress actually had some authority to enact. What delegated power do you see this as being enacted under?
4.15.2006 6:40pm
212 (mail):
Anyone have a good non-delegation analysis?

Also, Bernstein seems to have a number of unstated assumptions that could improve his analysis if they were explored, or at least acknowledged.

First, it should be strongly noted that court/firm practice is the function of the bar exam, but not the only use of a law degree. The two fields artificially bound to each other, and only became so after a long battle on the part of institutionalized legal education to wrest the courts away from apprentice lawyers. (A shockingly successful example of classic rent-seeking.) My brother's experience in preparing for the bar, which he passed, left him with distinct impression that three years of time and treasure less-than-necessary to pass the State BA's definitional tests of competence.

When examining passage-rates, one factor you might want to consider is what effect having a significantly lower debt at graduation has on those with a credential. Bar passage rates would be more relevant if there was some reference to how many do not bother taking the bar at all, and to what ratio of other graduates stay in front of the courts or in the firms <i>after</i> they pay down the loans.

A number of my classmates have no intention to practice in front of courts or in the firms. This tends to be a luxury reserved for those with either: 1) a trust fund; or 2) a generous scholarship. Percentages rates for passing the bar mean <i>far</i> less if you understand that the exam itself is a hurdle imposed by the high cost of modern legal education, a burden significantly eased on minorities.

It would also be helpful to account for any historical deficiency among minority communities in the sort of professionals that might benefit from a legal credential, but have nothing to do with practicing in front of a judge. The J.D. is possily the most versitile degree availible. If there is more oportunity for minorities than non-minorities to fill up deficient representation in alternative careers using their law degree, then the bar passage rates might be better accounted for.

If that is the case, minority graduates may have something that their debt-laden counterparts with full, saturation-point representation in alternative careers lack: accurate knowledge that the bar exam has little or no value to their future careers.

--------

Of course, this is an essentially American puzzle: most of the world does not hold the whole of their profession to the largely irrelevant courtroom standard. This is also why America is seen as having more lawyers than other countries; we lump what would in other countries be "royal bureaucrats" together with trial practitioners.

Misconceptions both about American society, and about minorities in legal education follow from it quite easily.
4.15.2006 7:47pm
Drinker:
The vast majority of graduates of law schools will take the bar and practice law, or end up wanting to. It is a waste of everyone's time to admit unqualified students, or those with statistically small chances of ever passing the bar. If you are taking their money, you are wasting it. If you give them scholarships for being minorities, you are wasting their time as well as spending money on people unlikely to benefit from your school, and diverting resources from people who could make better use of them. Finally, by bringing people into your school who will do poorly on the bar exam, you are hurting your school, since such statistics affect law school standings.
4.15.2006 9:21pm
markm (mail):
An association of lawyers is adopting a standard that will result in many more of the limited seats in 1st year law school classes going to people who are quite unlikely to become lawyers. Thus it reduces the supply of competitors for those who forced this standard on the schools. I suppose the ABA is somehow immune from antitrust laws?
4.15.2006 9:24pm
John Lederer (mail):
XX

You are right. Assume in the hypotetical that the requirments are specific and not the bottom end of a range.
4.15.2006 9:53pm
Can't find a good name:
To those looking for a citation as to why the letter's argument is chutzpah, absurdity, and audacity, I would advise them to compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). In light of Schechter Poultry, I can't imagine it being permissible for the Federal government to delegate to a private organization the power to create rules which supersede state laws under the Supremacy Clause.
4.15.2006 10:11pm
212 (mail):

The vast majority of graduates of law schools will take the bar and practice law, or end up wanting to.


Yes, and old corporate lawyers are sometimes haunted by doubts about if they had what it takes to take a case past motions practice. Even stipulating that this is accurate, it does not say anything about what they do after they break even. And then one must account for the golden handcuffs of corporate practice... the temporary drop in income associated with changing career tracks that artificially inhibits corporate practitioners' transition to positions in broader society.


If you give them scholarships for being minorities, you are wasting their time as well as spending money on people unlikely to benefit from your school, and diverting resources from people who could make better use of them.

Finally, by bringing people into your school who will do poorly on the bar exam, you are hurting your school, since such statistics affect law school standings.


Begging the question, "unqualified for what?"

Your claims are a good example of the blinders created by an excessive focus current academy statistics, to the exclusion of real world effectiveness. I should hope it's obvious that if graduates go on to alternative career in their communities, 1) they still benefit, and 2) their degree is not wasted.

A J.D. allows them to be more successful, and advance further than they would otherwise. If minorities with degrees have greater access to leadershipo positions in their own communities, then facilitating that advancement may be a more efficient way to expand an institution's access and influence among future leaders. Or to put it differently, minorities are more valuable to an institution because the credential gives them access to leadership positions far more efficiently on account of their communities' historically under-developed middle class.

The blind spot in your argument is that Alumni do not cease being resource for future graduates when they travel beyond the court-centered branches of the law. It's true for those that leave corporate/court work only after they can afford to do so, and just as true for those who are not forced to sign up for a tour of duty in the first place.

The irony is that this is more true for elite, national institutions than more local ones with degrees that don't mean much outside legal circles. Black letter law of a given State is taught by Bar/Bri, not Harvard. If law school were just about passing the bar, why on Earth would any institution offer Roman Law? Or Congressional Investigations? Or any of a hundred other topics that are never going to be featured on any BA's exam? Surely they can't all be chocked up to "future academics"

If schools recognize wider horizons of legal education through their course offerings, the ABA is in no way unjustified to recognize the broader functions of a legal education without altering their requirements for getting in front of a judge.
4.15.2006 10:40pm
The Plumber (www):
Boy, I'm glad I'm a plumber.

Normal people see this as what it is: white liberal guilt. Hell, I can't even think of the ABA without smirking.
4.15.2006 10:56pm
212 (mail):
One might consider what institutions produce ABA policy. I suspect that this provision is intended to provide cover for elite institutions that can grant credentials carrying weight far outside legal circles. For schools with JDs that are good for nothing but getting into court, those bar-passage rates are important. They have far less meaning for schools with big names and broad influence. Harvard is for future diplomats, not lawyers.

How many times did John John have to take the bar before he got through it? Would he have bothered to try again if he wasn't pushed into the NYCDA's office by his Jackie O'? If he had gone straight to publishing or whatever, would his education have been an obvious waste of resources?

The big schools, with the heavy endowments can point to this policy as a reason for reaping the benefits of seeding future minority community leaders with their institution's diaspora. Those without the spare resources can point to the opposing policies and bar-passage rates to justify not spending resources they don't have.

In the end, it's just about letting the tops do the leader-making they want to do anyway, blunting any hit they might take on the numbers when the seedlings themselves don't put much weight on the bar.

——————-

The Plumber,

It may also be guilt, but its origins are a little more specific than just "white liberal."

The State BAs actively repressed minorities in the profession. There was a moderate counter to this back when apprentice-training was a viable alternative to institutional legal education and the BAs didn't hold the keys to the courtrooms. Law schools did the hard work of discrimination in the legal profession, much the way unions did for labor.

For example, Harvard's fleet-footed recoil from meritocracy (Jews did too well on their entrance exams) seems farcical in light of its declared principles. If you've ever heard the words "whole character" or "well-rounded" in the context of admissions, you've seen the hangover of the "bad old days."

And that was just the ethnics. Racial minorities never had a prayer. The NYB once allowed a "black-as-sin negro" to sit for the test ("what's the harm," the proctor thought) and the reviewer was not informed of the melonin content of the applicant's skin before passing him. Half the New York Bar threatened to resign; they compromised with a check box on the exam, to assured the ruffled feathers that it would never happen again.
4.15.2006 11:45pm
Cornellian (mail):
It is a waste of everyone's time to admit unqualified students, or those with statistically small chances of ever passing the bar. If you are taking their money, you are wasting it.

However, adults are adults and it's the student's money to waste if he wishes. If he knows his LSAT score and the bar exam pass rates for graduates of that school, and chooses to spend the money anyway despite very long odds of ever passing the bar exam, that's his decision to make.
4.15.2006 11:54pm
Cornellian (mail):
An association of lawyers is adopting a standard that will result in many more of the limited seats in 1st year law school classes going to people who are quite unlikely to become lawyers. Thus it reduces the supply of competitors for those who forced this standard on the schools. I suppose the ABA is somehow immune from antitrust laws?

It's highly doubtful that there would be any reduction in the number of people graduating with JD's every year. Racial preferences don't reduce the number of people attending law school, it only alters where they attend. If you're displaced from Columbia, then maybe you end up going to Berkeley, or if you're displaced from Georgetown, maybe you end up going to the U. Illinois etc. It's not going to stop you from going to law school altogether.

In any event, ABA accreditation has already been the subject of an unsuccessful antitrust lawsuit. States are free to require an ABA accredited JD as a prerequisite to taking the bar exam, or not, as they wish, and such state action is indeed immune to antitrust scrutiny.
4.16.2006 12:00am
The Plumber (www):
212,

Which decade was that? Or should I say, which century?

Apologize or justify all you want; in the 21st century it is what it is: white liberal guilt.
4.16.2006 12:39am
Public_Defender (mail):
Boy, I'm glad I'm a plumber.

You may have a point there. Last time I checked, my county was paying court-appointed criminal defense counsel (on serious felony cases) about half the hourly rate that I paid a plumber to clean out my pipes.
4.16.2006 6:26am
Cornellian (mail):
You may have a point there. Last time I checked, my county was paying court-appointed criminal defense counsel (on serious felony cases) about half the hourly rate that I paid a plumber to clean out my pipes.

Which may turn out to be the same amount of money if the plumber is self employed, since you're paying him retail, while the public defender's salary is a wholesale expense of the county, i.e. you'd have to deduct the plumber's overhead to get a more meaningful comparison.

Nevertheless, it does seem that going to law school is an uneconomic proposition for a great many law students, the vast majority of whom will never work at a huge law firm or hit the lottery with a big jury verdict that's upheld on appeal. You'd have to wonder why they do it, since it doesn't seem to be economically rational. Perhaps it's an optimism bias, in that each incoming student to a low end law school assumes he'll be in the top 10% of his class. High end law schools are a different situation and it's easier to make the case there that attending is economically rational.
4.16.2006 9:50am
Fub:
David Bernstein wrote:

But what stake do "civil rights" organizations have in forcing third and fourth-tier law schools to matriculate African American students who will be giving up other career and educational opportunities for a (sometimes way) less than 50% chance at becoming a lawyer?


Short answer: They don't. The ABA only pretends they do, and has convinced some "civil rights" organizations of it.

Longer answer: This is just another front in the ABA's evil plan for world domination, for which they have enlisted useful idiots from "civil rights" organizations. For the humor impaired, that was a joke, at least in part. Which part is an exercise for the reader.

The ABA long ago has successfully lobbied legislatures or state bar governing bodies in some states to forbid graduates of any but ABA accredited schools or the state's schools from even taking the state's bar exam.

That's right — no matter how good you are at law, if you didn't get a JD from an ABA school or the state's school(s), you can't even take the state's bar exam. Thus you can never practice before state courts in those states without a judge's leave in the particular case.

I attended (and graduated) a school that accepted any applicant with some specified number of credit hours toward a bachelor's degree in any subject; who would pay the tuition, and who maintained passing grades. Not only is that not racially discriminatory, it is broadly nondiscriminatory in every other respect except passing the law school's exams and paying tuition.

I passed the California bar exam and was admitted to the SBC. Yet I am not even permitted to take the bar exam in some states, because of ABA-backed requirements for those state's professional qualifications.

Having read old released copies of various states' bar exams and model answers, I feel quite certain that I could pass their bar exams as well. So these ABA-induced rules are in no way protecting anyone from unqualified attorneys, at least in the sense of attorneys who could not pass the states' bar exam.

Of course, I knew that before I went to law school. I'm not complaining about it as an unexpected outcome. I'm complaining that it is an unjust state of law and regulation. It is of the same species as monopoly and restraint of trade.

To those who write of unaccredited law schools charging too high tuition, I can only say that the total tuition I paid from entry through graduation was a small fraction of one year's tuition at most any ABA accredited school.

It is difficult to say the phrase "American Bar Association" without guffawing at their presumptuousness, and spitting at their temerity in advancing brazenly parochial economic self-interest under the rubric of "civil rights".
4.16.2006 9:55pm
scaredee kat (mail):
have any of y'all read the bell curve? what does that book say? why is it out of print?
4.17.2006 12:24am
The Plumber (www):
Fub,

good comment. When the government make a decision about what to recognize, it creates a monopoly.

Looks like attorney's are stuck with the ABA monopoly, and every dumbass decision they make.
4.17.2006 10:39am
Public_Defender (mail):
Which may turn out to be the same amount of money if the plumber is self employed, since you're paying him retail, while the public defender's salary is a wholesale expense of the county, i.e. you'd have to deduct the plumber's overhead to get a more meaningful comparison.

Sorry for the diversion, but court appointed lawyers have overhead, too. They have to pay for access to a law library, rent, computer (some courts require online filing), computer programs, some support staff, CLE, mandatory dues, etc. (Unfortunately, donations to judicial campaigns may also be a practical necessity because some judges only give work to their donors.)

In most places, there's a difference between being a public defender and a court appointed lawyer. A public defender is generally (but not always) a salaried employee, so it would be meaningless to compare his or her wages to the plumber's rate. But a court appointed lawyer is a private lawyer who gets paid by the hour (often capped at a tiny number of hours) to handle specific cases. For those lawyers, it's fair to compare rates. And plumbers come out way ahead.

Again, sorry for the diversion.
4.17.2006 11:38am
Houston Lawyer:
Sometimes I regret resigning from the ABA so many years ago. They keep giving new reasons to resign all the time, but I can't resign because I'm no longer a member.

I would love to see the fire storm that would occur if the ABA were to pull the accreditation on UCLA Law School because the school complied with the California Civil Rights Initiative. Please don't throw me into that briar patch.
4.17.2006 2:00pm
The Plumber (www):
A local talk show (Kaplis and Silverman, 630 KHOW Denver) dedicated a line to illegal immigrants. The first two callers were plumbers working in Colorado. I may have to move or change jobs (since it is something I'm too lazy to do).

Plus, my costs have gone up 20% since Katrina. I now get notices once a month of price increases from parts suppliers. Before Katrina, I got about three a year.
4.18.2006 12:30pm