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On the ABA's "Well-Respected Tradition of Accrediting Law Schools":

In defense of the ABA's role in accrediting law schools, under fire for the ABA's pending insistence that all law schools use racial preferences even if they are illegal under federal or state law, Wade Henderson, executive director of the Leadership Council on Civil Rights, says: "The ABA has a long, well-respected tradition of accrediting law schools." That's one way of putting it. Another way of putting it is that the ABA has a long history of trying to cartelize the profession through accreditation standards, and that historically part of the purpose of these standards was to exclude Jews and other non-WASPs. From an article by James Moliterno in the Wake Forest Law Review:

One way the elite tried to exclude outsiders was through its attempt to set higher educational standards and higher bar admission standards. The elite lawyers were troubled by the influx of immigrants and Jews into the legal profession--many of whom went to law school by night or via correspondence courses. Night schools, observed the Dean of the Wisconsin law school, enrolled "a very large portion of foreign names." An ABA committee recommended that the character of the bar could be improved by raising educational standards in order to "purify the stream at the source."

And need I mention the irony of Mr. Henderson's comment in light of the fact that the ABA excluded African Americans from membership until 1954?(!)

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
Bruce Hayden (mail) (www):
This should be an interesting thread. I never did understand until now why the ABA was so opposed to night schools.
4.18.2006 9:44am
Vorn (mail):
I agree with Bernstein completely that it is simply ridiculous to defend the ABA with arguments referencing "well-respected tradition." That something is traditional is no defense; especially given the widespread racism that would characterize many "traditional" organizations in the United States if you trace their history back.

I am wondering, though, how far Bernstein would take this argument against tradition. Applied to other contexts, it might provide an excellent argument against defenses of originalism that rely on appeals to tradition.

It has always seemed to me that the "tradition" argument was weak in any context. It is essentially an argument from authority that is resorted to when someone doesn't have anything good to say in defense of what they are advocating. Doesn't every practice need to be defended on its present-day merits?
4.18.2006 9:46am
Duncan Frissell (mail):
Arguments from tradition don't enter into things until you're talking about aristocracy, marriage, or the Church.

Originalism isn't an argument from tradition (the Constitution is only 219 years old or so) but an argument in favor of original (intelligent) design. The US was a radical break from previous systems.

Actually, the ABA's tradition of cartelization isn't that old. I'm sure that they had no sway 100 years ago.
4.18.2006 9:59am
Public_Defender (mail):
Would Bernstein apply that argument to Ronald Reagan and the Republican party? Reagan very intentionally stoked the fires of white racism for his own political benefit. For instance, going Philadelphia Mississippi, where the Klan murdered Medgar Evers, to say pledge support for "states' rights." Now tell me, what did "states' rights" mean in 1980 rural Mississippi?

Reagan was either being stupid or racist. And, despite the belief of some, he was not stupid.

The ABA deserves to take its licks for its racist past, but the Republican party has its own more recent history to deal with.
4.18.2006 10:01am
davidbernstein (mail):
PD (and others). Please stay on topic. This is not a thread about the Republican Party.
4.18.2006 10:24am
Public_Defender (mail):
If you want to discuss how much we should condemn the modern ABA for its pre-1954 racism, isn't it helpful to compare it to how we treat other organizations with more recent histories of racism?

But it's your post and your site, so I won't respond to any comments of my criticism of Reagan.
4.18.2006 10:42am
llamasex (mail) (www):
I am not sure what the point of bringing up 1950s racism is. It seems like a non-sequitur attack on an organization your mad at because they are pushing policies you disagree with.
4.18.2006 10:49am
Tflan (mail):
The ABA really annoys me. Who are they to say how many hours you can work while in school? Or how many absences you can have? This is just a barrier to entry masquerading as minumum standards, which granted most rules by trade groups are. Of course, if I pass the bar in July, my outlook will probably change. Open competition is great if you are trying to get the chnace to compete, but once you get admitted, who wants more competition?
4.18.2006 10:50am
TO:
llamasex, I think Prof. Bernstein is taking issue with the ABA's claim that it has a "long, well-respected tradition" of accrediting law schools. When you say something like that about your organization, you open up your past to scrutiny.

Reasonable people can disagree about how relevant the ABA's track record is to the current debate about its proposed policies, but Wade Henderson is the one who put it on the table.

I think it's a very simple point. Henderson says that the ABA has a "long, well-respected tradition" or accrediting law schools. Prof. Bernstein points out that it actually doesn't.
4.18.2006 10:55am
The NJ Annuitant (mail):
In my opinion, the ABA is usually engaging in economic rent-seeking activity when it runs the accrediting of law schools. In this instance, it is trying to enforce a political/social policy it likes, even if it is unlawful. My cynical side tells me there must be an economic rent-seeking aspect to this policy , too. We just have to figure it out.
But, in any case, the time has come for the ABA to be taken out of this business, or at least take away their monopoly in it.
4.18.2006 11:08am
AppSocRes (mail):
I know that the "Flexner Report" was responsible for "professionalizing" US medicine in the late 19th and early 20th centuries. I also know that a similar professionalization of the law had not occurred in Indiana at the time Abraham Lincoln clerked in a law office while preparing for the Bar. Can someone provide a brief historical description of when, where, and how attendance at law school became a pre-requisite for taking a bar exam and how the ABA gained control of accrediting law schools?
4.18.2006 11:10am
The Human Fund (mail):
I can't give you the history you seek, but I can tell you that in some states you can still sit for the bar without having attended law school. It varies by state, obviously, and I once saw a chart outlining each state's requirements, but I don't know where I saw it.
4.18.2006 11:22am
Alan Meese (mail):
1. So far as I know, there is no economic rationale for the ABA's accreditation process, which is extremely expensive for the schools involved, particularly in faculty and administrative time spent in writing a lengthy report, holding numerous meetings, taking the site visit team out to dinner (something the school pays for), etc. So far as I can tell, the ABA has not identified any "market failure" that can only be solved by some form of regulation/accreditation. On the contrary, consumers in this market (potential law students) are very well-informed and extremely bright.

2. Somehow William and Mary managed to educate John Marshall without ABA supervision.

3. Readers might also want to examine the work of George Shephard at Emory, which shows that the ABA accreditation process has a "disparate impact" on schools with a significant proportion of minorities that are seeking accreditation.
4.18.2006 11:26am
Ross Levatter (mail):
Forgive me if I'm missing something, but the economic rationale doesn't seem that hard to discern. If pushing black candidates for acceptance to law school means pushing a group with a significant chance of not passing the bar, it immediately follows less people will pass the bar. Therefore, less lawyers. Lowering the supply increases the price, ceterus paribus.
4.18.2006 11:32am
Steve:
The history of the ABA sounds a lot like the history of America to me, and I would certainly defend the position that America has a "long, well-respected tradition of democracy and freedom" in spite of whatever historical atrocities you might want to bring up. Incidentally, I really enjoy the closing exclamation point on this post, as if it's so shocking that blacks were denied entry to some segment of society as late as 1954.
4.18.2006 11:38am
anon 3L:
Does anybody know the origin of the phrase "ambulance chaser"? My PR prof surmised that it was originally antisemitic (or anti-immigrant) and related to the ABA's earlier efforts to exclude.
4.18.2006 11:40am
cld:
If a student goes to law school and cannot pass the bar who's business is it but the students?

I say if they want into law school let them in. If they can't hack it once they are in then at least they had the opportunity.
4.18.2006 11:41am
eeyn524:
DB is probably right on the particular case here, but not the part here and in earlier posts showing surprise that accreditation standards could conflict with state/federal law doesn't really seem right. If a state decided (for example) to pass a law creating a diploma mill to help out their budget, one would hope that accreditation groups would refuse to go along. It's the state's problem if they mandate rules incompatible with being accredited, and simultaneouly require their schools and licensed professionals to come from accredited programs.
4.18.2006 11:46am
FreezePeach:
The cite for Moliterno's article: Lawyer Creeds and Moral Seismography, 32 Wake Forest L. Rev. 781 (1997)

Ilya Not-Somin
4.18.2006 11:53am
Paul Hirsch:
One can be admitted to the New York State bar via clerking in a law office. I had the pleasure of knowing and working with a gentleman who did just that. If anything distinguished him from most of the other attorneys I've known, it was his great attention to detail. His name was Steve Gittler and he was very proud of the way he became an attorney at law. He has sinced passed way and I am happy to have this opportunity to speak of him.
4.18.2006 11:55am
The Human Fund (mail):
I found that chart I had referenced earlier, setting forth the various means of legal study allowed by state. Interestingly enough, it was on the aba's website
4.18.2006 12:06pm
AppSocRes (mail):
Thanks to all for the info on law school as a pre-req for taking the bar. I'm off to read these materials and learn a bit more about the subject. It's nice to know that the academic establishment (even in New York) hasn't totally taken over what was once a pathway for the poor but ambitious to achieve status, wealth, and power.
4.18.2006 12:22pm
Don Miller (mail):
If a student goes to law school and cannot pass the bar who's business is it but the students?

I say if they want into law school let them in. If they can't hack it once they are in then at least they had the opportunity.


By it's very nature, attendance at law school is by definition a scarce resource. Only a certain number of people can attend every year.

By admitting people, who have little to no chance of graduating, to fulfill some utopian fantasy of the ABA, you hurt the population at large because of an inefficient method of allocation of that resource.

Every unqualified person, that is admitted, could have potentially taken the seat of someone qualified and capable.
4.18.2006 12:23pm
John Steele (mail):
AppSocRes,

The standard reference is Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).

Email me and I can send you a ten page sketch of the history.
4.18.2006 12:24pm
Fub:
The NJ Annuitant wrote:

In my opinion, the ABA is usually engaging in economic rent-seeking activity when it runs the accrediting of law schools. In this instance, it is trying to enforce a political/social policy it likes, even if it is unlawful. My cynical side tells me there must be an economic rent-seeking aspect to this policy , too. We just have to figure it out.


Think of it as the way the Mafia does rent seeking. It's time either to take over the competition or to wipe them out.

But, in any case, the time has come for the ABA to be taken out of this business, or at least take away their monopoly in it.


Easier said than done. To do that, you'd have to take some state legislatures and courts out of the business too. On the issue of (non-federal) bar credentials, the legislatures and courts are the last word, and the ABA long ago saw to it that their word was for the ABA.

However, the ABA is not the only rent seeking guild to set up legal monopolies state by state through barriers to entry that have nothing to do with competence.

Here's how it works. First you set up the competence barrier, with which most reasonable people would agree. Requiring a fairly administered competence exam does not offend most people, except perhaps a small libertarian fringe. But it also doesn't give you complete control over entry to the business or profession. It offers only the camel's nose under the tent, just the beginning of a convenient slippery slope.

So you push. You press for a barrier to taking the competence exam. You convince governing bodies to permit only those who have taken your guild's approved training to take the competence exam. This is an easy argument to legislators, courts and other governing bodies. The governing bodies want to be in control because, well, that's what they think they are supposed to be. They are restrained only by their individual members' fears of losing elections or reappointments.

What better way to assuage that fear than to say "delegate authority to us, and our membership will go to bat for you during elections and confirmation hearings." Bingo. Now the only question for any timorous official is whether his constituency will trust a body of self-designated honorable and competent professionals or some crank who says the professionals are just rent seeking elitists creating barriers to entry for the common man. That's an easy call for any official.

Voila! Now your union, guild or professional organization is a full fledged monopoly. It has worked every time, for plumbers, physicians, engineers, and a host of professions and trades.

Now legislators and courts can assure the people that their interests and safety are assured by competent professionals, because the professionals say so. Only fringe cranks will want to look behind the green curtain, or dare to say that the emperor is wearing no clothes.
4.18.2006 12:51pm
Cornellian (mail):
You'll have a hard time convincing me that an institution's position today should be rejected because it had racist policies in the 1950's (or earlier). What institution didn't? What government body, corporation, relgious denomination or other association that's been around that long wouldn't have policies from the 1950's that they wouldn't be proud of today. There are plenty of valid criticisms of the ABA's approach to accreditation, but pointing out that they were racist in the 1950's isn't one of them.

"But, in any case, the time has come for the ABA to be taken out of this business, or at least take away their monopoly in it."

Ah yes, another big government conservative comes out of the woodwork.
No state is forced to rely on the ABA for accreditation. Every state is free to have its own accreditation system. California, for example, is such a state. They have their own accreditation system and you can take their bar exam upon graduating from a state accredited school that isn't ABA accredited. It seems to me that we have a free market in accreditation right now and no reason to think that the market isn't working in this regard.
4.18.2006 12:56pm
Adam Scales (mail):
Cornellian,

Although I liek David's zinger, your first point is a fair one.

Your second point is absurd. How can there be a free market where there are no viable alternatives to ABA accreditation? Aren't you a law student? Do you think there is a free market for law school standardized testing services?

Normally, one might agree that a market could be relatively free, even though there is monopsonistic behavior. That doesn't work very well here because of the tight integration between accreditation, post-school examination and the legal right to practice law.
4.18.2006 1:09pm
eeyn524:
Mr. Miller: The argument that law school slots are a scarce resource is related to larger problem in higher education, in which too much attention is paid to who gets in and not enough to who gets out. (Law schools are actually better than average on this since there is some serious quality control upon completion). I think in general, admission requirements should be reduced, the number of admission slots should be increased, the freshman fail rate should be increased, and retention should be eliminated as a quality measure.

Yes, it's a bit inefficient; but most of the bad cases will wash out the first year, especially if you set up the curriculum to ensure they do wash out. The best test of who is qualified is seeing who actually does pass.
4.18.2006 1:11pm
Adam Scales (mail):
Cornellian,

Let me retract my use of the word "absurd". That isn't helpful.

California is a special case. It is big enough to go its own way. Certainly, you are correct that other states could try. I wonder Lindgren or anyone can point to research on the relationship between law graduate quality and overall pass rates? We all know Cal. has a low pass rate. My instinct is to attribute this to a decision to restrict new entrants. However, some of it is undoubtedly related to all those non-ABA accredited law schools.
4.18.2006 1:15pm
markm (mail):
"Forgive me if I'm missing something, but the economic rationale doesn't seem that hard to discern." I think I was the first to bring up this possible economic rationale, in the comments to one of Eugene's posts. However, the economic rationale does not seem very convincing in this case. The supply of law school graduates and even of licensed lawyers seems to exceed the demand by far more than the few percent of 1L classroom seats that the ABA's policy will affect.
4.18.2006 1:17pm
Clayton E. Cramer (mail) (www):

The ABA has a long, well-respected tradition of accrediting law schools.
American law had a long, well-respected tradition of criminalizing homosexuality. We know that the ABA wouldn't consider that an argument of any value at all.
4.18.2006 1:20pm
John Lederer (mail):
"By it's very nature, attendance at law school is by definition a scarce resource. Only a certain number of people can attend every year."

Actually if one removed artificial restraints like accreditat wouldn't the number of institutions and seats grow to match demand?
4.18.2006 1:23pm
rbj:
If a student goes to law school and cannot pass the bar who's business is it but the students?

I say if they want into law school let them in. If they can't hack it once they are in then at least they had the opportunity.


Not only is law school a scarce resource, it is an expensive one. Putting anyone in law school who has little chance of success is going to saddle that person with thousands of dollars in debt (depending upon how many semesters that person completes.) And even if that person is given a free ride via scholarships, that in turn lessens the number of scholarships for those deserving students with a good chance at success.
4.18.2006 1:25pm
Brett Bellmore (mail):
Or, who knows, if we removed artifical restraints on what could be done by people without law degrees, shrink to match it...
4.18.2006 1:32pm
Dave G:
The Delta house has a long tradition of existence to its member and to the community at large.

Sorry, I'm simply unimpressed by arguments from tradition, and I'm pretty sure the current ABA leadership is as well. Defending mandatory affirmative action on the basis of tradition is nonsense on stilts.
4.18.2006 1:49pm
MDJD2B (mail):
It has always seemed to me that the "tradition" argument was weak in any context. It is essentially an argument from authority that is resorted to when someone doesn't have anything good to say in defense of what they are advocating. Doesn't every practice need to be defended on its present-day merits?

The tradition argument serves to place a burden of proof on those who would change a practice-- no more and no less. It says, "If it ain't broke, don't fix it," or at least, " Provide a good reason fro changing this practice-- show me why you believe things can be significantly better than they are now."

A few years ago, Lani Gunier or somoeone was talking about how children took turns playing different games, or in setting rules for a game, and said that fairness dictated that society be run on that principle. Legitimate arguments from tradition simply contradict this point of view, and aver that it is at least as easy for things to be worse as to be bertter, and that there is some positive value in satisfying people's expectations as to what rules will be in place tomorrow.
4.18.2006 1:56pm
MDJD2B (mail):
First you set up the competence barrier, with which most reasonable people would agree.... [Then, y]ou press for a barrier to taking the competence exam. You convince governing bodies to permit only those who have taken your guild's approved training to take the competence exam.

FAB,

I would submit that is some areas, like medicine, where practitioner judgment and technical skill are as important as knowledge, simple exams do not suffice. In such areas of endeavor, certification legitimatley requires demonstration of hands-on training of a certain quality. Furthermore, evaluation of the adequacy of a trainee's skills must be, in part, based on the subjective judgment of the educators and evaluators who are familiar with the trainee's performance.

I say this having trained resients for a number of years. Certification exams do not tell the whole story. And the public is protected by requirements that training programs be accredited.

Theoretically, the government could appoint professionals with the appropriate skills to do the accreditation, rather than delegating this to professional organizations in a quasi-public capacity. But doing things the way they are being done provides at least some measure of oversight over the accrediting body. If the American Board of Neurossurgery required a certain proportion of graduating neurosurgeons to meet certain dempgraphic criteria, it is paooible that a governmental agency would want to pick their brains to see wha tthey were thinking of.
4.18.2006 2:06pm
Alan Meese (mail):
To Ross L:

By "economic rationale" I meant "legitimate economic rationale," i.e., overcoming a market failure. What you descibe is pure rent seeking by incumbents with the power to control the supply of their rivals. That rationale is certainly "economic," in the sense it relies upon the basic laws of economics (supply and demand) to enrich entrenched practitioners. But, it is not an "economic" rationale in the sense I was using the term.
4.18.2006 2:15pm
Bruce Hayden (mail) (www):
The problem with just opening things up is that of grade inflation. What would be the incentive to kick out all those 1Ls at the end of their first year, when they could just as easily pay for another two years? The solution is just to drop the standards a bit. You would, of course, still have the bar pass problem, but meanwhile, the schools would have collected two more years of tuition.

What has to be remembered is that law schools can be cash cows, and if ABA accredidation were not involved, would be even more so. The ABA does require a couple of things that increase costs, possibly just to do so. First, their library requirements add a significant cost, possibly beyond what is justified, esp. given the Internet, WestLaw, Lexis, etc. And, second, they penalize the use of adjunct professors, who cost a lot less than do regular faculty. This is my pet peeve, since, by choice, I had a lot of very good adjunct profs. For 2L and 3L, they often do as good, or even, better job, often teaching a subject that they have practiced in for a couple of decades. They are also in it for the teaching, and not the cushy job, since for the most part, their adjunct salaries are peanuts compared to what they make practicing law. Of course, more adjuncts would also mean more teaching the actual practice of law, as opposed to the theory of what politically correct law should be.
4.18.2006 2:18pm
Alan Meese (mail):
I don't understand Cornellian's argument. The "Big Government" at work here are the various state legislatures that require one to attend an ABA accredited law school before taking the Bar. Many of us are arguing that this Big Government should eliminate this barrier to taking the bar exam and perhaps eliminate the bar exam itself. Coercive barriers to entry infringe personal liberty of occupation, and there is no plausible police power rationale for such regulation. (Why not also have a "bar exam" for folks who enter the restaurant trade?)

If attending an ABA accredited school and/or passing the bar is so useful, then presumably purchasers of legal services in the marketplace will demand the services of those who passed the bar and attended an accredited school. But, the fact that the ABA demands that states impose their accreditation coercively suggests that the ABA is afraid to subject its accreditation to a market test.
4.18.2006 2:23pm
Bruce Hayden (mail) (www):
The problem with California accredidation is that it only gets you a chance to sit for the California bar. That is, of course, fine, if you attend school there and intend to practice there as well. So, it works for California, but is unlikely to work elsewhere.

After all, what happens if you graduate from a school in state X, accredited by that state, that allows you to take their bar by virtue of that graduation. You then practice there a couple of years, and, then, the bottom drops out of the legal market in your chosen specialty? If you move to another state, you can't take the bar there, so your JD is now almost worthless, as well as those years you spent practicing law.

I should note that in many state, including, I think, here in CO, after a number of years (seven?) of practice, after graduating from a non-ABA school elsewhere, you can sit for the bar. So I specifically put the number of years of practice below that threshold in my scenerio above.

Nevertheless, a lot of us have interviewed across the country over the years, and this is forclosed for any who don't graduate from ABA accredited law schools (at least right now).
4.18.2006 2:27pm
Cornellian (mail):
"I don't understand Cornellian's argument. The "Big Government" at work here are the various state legislatures that require one to attend an ABA accredited law school before taking the Bar. Many of us are arguing that this Big Government should eliminate this barrier to taking the bar exam and perhaps eliminate the bar exam itself. Coercive barriers to entry infringe personal liberty of occupation, and there is no plausible police power rationale for such regulation. (Why not also have a "bar exam" for folks who enter the restaurant trade?) "

If you accept that state legislatures are free to disregard ABA accreditation, go their own way, and recognize law schools under their own system of accreditation, or have no system at all, then you're simply accepting my point that the ABA has no monopoly and the fact that most states require an ABA accredited JD is simply the market at work. You can complain about "big government" state legislatures for going with the ABA, but you can't complain about "big government" ABA for having an accreditation system in the first place when they have zero power to force state governments to use it. States use ABA accreditation because it's simple and easy. You let someone else do all the work and you don't have to hire a bunch of policy experts and inspectors to run your own home grown accreditation system. It's not hard to see why a state would prefer going with the ABA system which doesn't require the state to spend a dime, even if the state doesn't necessarily agree with all the ABA criteria. For those who don't like the ABA system who want to try to convince smaller, poorer states to ignore it, the free market answer is to come up with your own system of accreditation and start promoting it, not to complain that the government should do something about the ABA.
4.18.2006 2:40pm
Bruce Hayden (mail) (www):
I kinda like being a member of a learned and licensed profession, and I think most attorneys do too. Not just for the guild benefits of higher pay, but also for the social side of it. Yes, a lot of people don't really like us, as a profession, but the bulk still seem to respect us. I don't know how many times I have been introduced, in hushed tones, as an attorney. I have lost count by now, and it always feels a little absurd, having grown up with a father in the profession and, thus, always having a lot of them around. But the reality is that currently only about 1% of the poplulation of this country are attorneys, and they are not evenly distributed throughout society, most often preferring to hand around with other "learned professionals" and the like.

So, yes, from a purely economic point of view, it might be nice to abolish our guild, as such. But I don't see it happening in the near future. For one thing, one place where attorneys do congregate is in and around government. Any attempt to deregulate the profession is likely to evoke an energetic response by those who are both in the legislature and are attorneys (as well as all those attorney lobbyists) that those proposing the deregulations just don't know what they are talking about (and should, therefore, trust those of us who are attorneys, and who obviously do know). No surprise, courts, being run by former attorneys, are not going to be very sympathetic either.
4.18.2006 2:44pm
John Lederer (mail):
My unserstanding i sthat the claim iof excluding Blacks from the ABA until 1943 (not 1954) came from the ABA's brief in the Michigan affirmative action case and has not held up particularly well to analysis.
4.18.2006 2:47pm
Bruce Hayden (mail) (www):
The problem with the argument that the market is requiring ABA accredidation, and the states recognize that, is that it isn't the states' role really to make the market determination. It is up to the schools. Yet, it is the states that are requiring ABA accredidation, not, specifically, the schools.

I can easily see a situation where schools get ABA accredidation because it helps them sell themselves to their prospective students. Indeed, that is the case in CA right now, with its major law schools currently being ABA accredited.

But why is it in almost every state's best interests here to increase the market value of its JD degrees, and, the JD degrees of all other ABA accredited schools, while reducing the market value of non-ABA accredited JDs?
4.18.2006 2:50pm
Dave Hardy (mail) (www):
I've always had a problem with, well--

Clearly you can justify the bar exam -- a professional test of skill.

The justification for requiring 3 years of law school before that is more tenuous, but not irrational.

But the justification for requiring that that school be accredited by a *purely private* organization/firm, before one is allowed to take a government test for government licensing ... seems quite a bit harder to justify. I could see a requirement of government accreditation... but to hand it over to a private corp., with no accountability to the people at large, no due process requirements, etc.?
4.18.2006 3:28pm
Bruce Hayden (mail) (www):
I should note that the professed purpose of the bar exam, and its requirements, typically including ABA accredidation, is not economic, per se, but rather consumer protection.
4.18.2006 3:28pm
David M. Nieporent (www):
Cornellian:
You'll have a hard time convincing me that an institution's position today should be rejected because it had racist policies in the 1950's (or earlier).
You're missing the point. The issue isn't that the racist policies discredit the institution's position today; the issue is that the racist policies discredit the institution's "respected tradition."

Moreover, you miss the point that DB isn't merely saying that the institution had racist "policies," but that it had a racist raison d'etre. This is the same reason Steve's point doesn't hold up:
The history of the ABA sounds a lot like the history of America to me, and I would certainly defend the position that America has a "long, well-respected tradition of democracy and freedom" in spite of whatever historical atrocities you might want to bring up.
Although the U.S. was guilty of historical sins, these were aberrations; the U.S. wasn't constructed specifically for the purpose of discriminating. Whereas DB's argument is that the ABA's accreditation was.
4.18.2006 3:44pm
Fern:

California, for example, is such a state. They have their own accreditation system and you can take their bar exam upon graduating from a state accredited school that isn't ABA accredited. It seems to me that we have a free market in accreditation right now and no reason to think that the market isn't working in this regard.

You can go to a law school that is not accredited at all and take the California bar. Heck, you can study with an attorney and then take the California bar. But all of those options are a waste of time and resources because unless you go to an ABA accredited school, you have less than a 50% chance of passing the bar. Don't forget that California also has one of the hardest bars in the country. It's misleading to act like California has a free market legal education system when they've made admittance to the bar so ridiculously hard.
4.18.2006 3:55pm
Fub:
Fern wrote:
You can go to a law school that is not accredited at all and take the California bar. Heck, you can study with an attorney and then take the California bar. But all of those options are a waste of time and resources because unless you go to an ABA accredited school, you have less than a 50% chance of passing the bar. Don't forget that California also has one of the hardest bars in the country. It's misleading to act like California has a free market legal education system when they've made admittance to the bar so ridiculously hard.


I must respectfully disagree.

If ABA schools have a higher pass rate than unaccredited schools, that is no discrimination on the basis of school. It only shows that ABA students are better prepared on average than unaccredited students.

A difficult bar exam does not make the market unfree, if anyone can take the exam and be admitted upon passing. Requiring graduation from only specified schools in order to take the bar exam does eliminate the free market.

The California bar examiners do not discriminate against unaccredited schools. They grade blindly. Therefore with respect to school attended, the market is free.
4.18.2006 4:41pm
cld:

"Not only is law school a scarce resource, it is an expensive one. Putting anyone in law school who has little chance of success is going to saddle that person with thousands of dollars in debt (depending upon how many semesters that person completes.) And even if that person is given a free ride via scholarships, that in turn lessens the number of scholarships for those deserving students with a good chance at success."



Why are you or anyone else for that matter concerned with the debt someone else carries if they fail out of law school? I realize that law school is expensive and undertaking any task of this cost, whether buying a car or house, should not be taken with a grain of salt. If someone has decided they would like to try law school why stop them? If they try and fail, at least they tried. I would rather try and fail then be told I cannot even try.

If you are worried about letting people into law school that might fail out because of the debt they will be burdened with are you also for putting higher restrictions on entrance into undergraduate degree programs? My guess is more people fail out of these undergraduate degree programs than would fail out of a more open law school. What about their debt burden?
4.18.2006 4:45pm
Cornellian (mail):
Although the U.S. was guilty of historical sins, these were aberrations; the U.S. wasn't constructed specifically for the purpose of discriminating. Whereas DB's argument is that the ABA's accreditation

He said it was one of the reasons for accredition, not the sole reason or even the dominant reason. It's way to easy to illustrate what's wrong with that argument. The US Constitution was designed, in part, to ensure blacks didn't count as full persons, therefore, the Constitution can't be said to have a long and distinguished tradition to it. Absurd? of course, but so is the same argument against ABA accreditation.

ABA accreditation might be a bad thing (though as I have pointed out in earlier posts, no state is forced to use it) but DB's argument isn't a valid reason for reaching that conclusion.
4.18.2006 5:06pm
Cornellian (mail):
The ABA has a long, well-respected tradition of accrediting law schools.

American law had a long, well-respected tradition of criminalizing homosexuality. We know that the ABA wouldn't consider that an argument of any value at all.


In fact, as Lawrence v. Texas points out, the alleged "tradition" isn't even old enough to start collecting Social Security. Non-procreative sex has long been the subject of criminal sanctions, regardless of the gender of the parties involved, and sometimes even between married couples. The idea that some sexual activity is permissible between a man and a woman but criminal between two men or two women is of very recent vintage.
4.18.2006 6:04pm
Clayton E. Cramer (mail) (www):

In fact, as Lawrence v. Texas points out, the alleged "tradition" isn't even old enough to start collecting Social Security. Non-procreative sex has long been the subject of criminal sanctions, regardless of the gender of the parties involved, and sometimes even between married couples. The idea that some sexual activity is permissible between a man and a woman but criminal between two men or two women is of very recent vintage.
Lawrence said it, but it isn't true. I put together a collection of early statutes that specifically prohibited homosexual sex--as opposed to bans on non-procreative sex--here.

Here's an example from Providence Colony:


First of sodomy, which is forbidden by this present Assembly throughout the whole colony, and by sundry statutes of England. 25 Hen. 8, 6; 5 Eliz. 17. It is a vile affection, whereby men given up thereto leave the natural use of woman and burn in their lusts one toward another, and so men with men work that which is unseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27. The penalty concluded by that state under whose authority wo [sic] are is felony of death without remedy. See 5 Eliz. 17.


Here's another, the 1650 Connecticut statutes:

Yf any man lye w[i]th mankynd as he lyeth w[i]th a woman both of them have comitted abomination, they both shall surely be put to death. Leu : 20. 13.
The Lawrence decision is false history.
4.18.2006 6:44pm
ReaderY:
1. The way policy disagreements with the present ABA are being aired seems to have a venom that surprise and turn off outsiders, and which will not necessarily aid the reasoned and polite discussion of ideas Professor Volokh aspires to.

2. The extent to which learned professions should act like businesses v. other types of organizations is a matter on which reasonable people can disagree reasonbaly. Loud proclamation of certitude of ones own viewpoint, or denunciation and demonization of others, may add heat to these issues, but I doubt it adds any light.
4.18.2006 7:23pm
PersonFromPorlock:
Um. Hasn't prostitution been supervised by organized crime at least as long as law schools have been supervised by the ABA?

But of course, comparison is invidious.
4.18.2006 8:59pm
The NJ Annuitant (mail):
Fub has put forward a very convincing theory of why the ABA's current stance on affirmative action in law school admissions is rent-seeking. Most of the ABA's activies in law aschool accreditation is rent-seeking. Many , if not most, of its policies are rent-seeking. Just don't accept their "holier than thou" nonsense.
4.18.2006 9:49pm
Stephen M (Ethesis) (www):
Why are you or anyone else for that matter concerned with the debt someone else carries if they fail out of law school?

Well, last time I was involved with the issue, in Texas, it was because of the large impact on malpractice and ethics violation numbers that resulted from a similar cluster of behaviors (people without jobs, but with law licenses, trying to do work they did not know how to do).

The missing item is that we need internships much like those in the medical profession and the related fields. Before my wife took her CRNA exam she had administered anesthesia over nine hundred times -- think of that as sitting for the bar only after having done a total of 900 hearings, depositions and other law tasks.

Doctors are not allowed to practice until they've had several years of supervised training.

In large law firms, the same is true of the associates.

For them, the bar exam marks the gatepost of qualified to receive training.

But, in many other parts of the profession, people are not trained and end up practicing law without knowing what they are doing.
4.18.2006 9:57pm
Bob Smith (mail):

By it's very nature, attendance at law school is by definition a scarce resource. Only a certain number of people can attend every year.

This is a real question: Is that true because it must be so, or is it so because the ABA won't accredit law schools who admit "too many" students, just like the AMA does?
4.18.2006 11:15pm
Cornellian (mail):
By it's very nature, attendance at law school is by definition a scarce resource. Only a certain number of people can attend every year.


Places in law school are no more a scarce resource than tables in restaurants are a scarce resource because only so many people can go to restaurants on any given evening.

If the demand is there, existing law schools can expand, and new ones can be built. Places at the top law schools might be scarce, but that's an entirely different matter. No one has to go to a top law school to be entitled to practice law.
4.19.2006 9:26am
Clayton E. Cramer (mail) (www):

The missing item is that we need internships much like those in the medical profession and the related fields. Before my wife took her CRNA exam she had administered anesthesia over nine hundred times -- think of that as sitting for the bar only after having done a total of 900 hearings, depositions and other law tasks.

Doctors are not allowed to practice until they've had several years of supervised training.

In large law firms, the same is true of the associates.

For them, the bar exam marks the gatepost of qualified to receive training.

But, in many other parts of the profession, people are not trained and end up practicing law without knowing what they are doing.
Another interpretation of this is that law schools are inadequate to teach law. How many other professions graduate people with a degree--but operate on the assumption that you aren't competent to do a job with it?

I will agree that medicine is one of those areas where you can't be too exacting (at least in some specialties)--people's lives are at stake. But that's true of a lot of professions. Most software engineers won't write code that puts anyone's life at risk--but a few do. I'm thinking of the MRI machine code failure that caused patients to die of radiation overexposure. I worked for a company where a defective floating point library would have, if the customer hadn't detected the problem during simulations, caused a chemical plant to explode. What makes law so special, while so many other professions are not? I mean, besides the fact that lawyers are overrepresented in state legislatures?
4.19.2006 12:41pm
eageryoungmind (mail):
i was hoping to ask if somebody could explain how a legal challenge to the ABA accreditation standards could be made.

Is the ABA a private entity or a state (or federal) actor? from what angle would the provision be attacked...would you have to get to the ABA through the department of education? And once you get either party in court, what are the best constitutional arguments? Just the same arguments from grutter, but with different justices?

i've had con law II, so i know something about these issues, but its really not my field of expertise, so if somebody could help explain some of the details, i'd sure appreciate it.
4.23.2006 12:50am