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The ABA and Law School Accreditation

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James Huffman, dean emeritus at Lewis & Clark Law School, has an op-ed in the WSJ titled Perverse Incentives of the Lawyers Guild.  It has nothing to do with crime, but it is a good example of why the American Bar Association, a private organization unaccountable to the public, should be given no standing whatever in the exercise of government power, an issue that comes up frequently in right-to-counsel cases.
Huffman describes the problems with ABA accreditation of law schools.  The process has been captured by law school faculty, and the criteria for accreditation drive up the cost for students, schools, and (at public universities) state governments with little relation to the actual quality of education.  For example, there is a requirement that most courses be taught by full-time faculty (not adjuncts), but full-time faculty must not be burdened with actually teaching full-time.  They have to be given time to produce research and scholarship.  Unlike real sciences, where research may produce vaccines against dreaded diseases or other tangible benefits to mankind, most legal research is worthless.  Judges regularly tell us they don't pay much attention to law reviews any more, as there is so little of value in them.

Huffman's solution is:

The ABA should free law schools from most of the existing standards and encourage them to draw on the enormous intellectual power of their faculties to design and test innovative approaches--and let a thousand flowers bloom. The ABA's role should be limited to assuring that prospective students and legal employers get full and honest information about what could become a bonanza of legal education alternatives.
He seems to be arguing for a reform coming from the ABA itself.  Good luck with that.

I suggest we go back to the root and ask why the ABA is accrediting law schools in the first place.  Why does it matter if a law school is ABA accredited?  Well, in most states, graduation from an ABA-accredited school is a requirement to take the bar exam and become a lawyer.  Where that is true, this unaccountable private organization is indirectly exercising a governmental power of deciding who can practice law.

The only legitimate reasons for the government to regulate who can practice law are protection of the consumer and protection of the system.  Lawyers can cheat their clients by taking on a case they are not competent to handle or filching the trust money.  Incompetent lawyering is also detrimental to the integrity of the system, as is suborning perjury and other unethical conduct.

Quality of education is mainly relevant to the competence aspect.  Despite what the advocates of ethics education say, education or lack of it really has little to do with serious ethical breaches.  You don't need a class to know "thou shalt not steal" and "thou shalt not bear false witness."  Everybody has known that for a long time.

So, if the criteria for ABA accreditation have little to do with the actual competence of a school's graduates to practice law, as Huffman says and many others have said, why should ABA accreditation be a criterion for a school's graduates to become lawyers? 

It shouldn't.  But we do need something, and I don't buy Huffman's floral theory.  Students and employers are not the only interested parties here.  Full disclosure and student choice do not sufficiently protect the interests of future clients or the legal system.

The states should form their own organization to accredit law schools based solely on the quality of education provided.  Are they teaching what people need to know to competently practice law?  Are their exams sufficiently protected against cheating?  Bar exam passage rates provide an indication also, although a crude and incomplete one.

How much weight should accreditation give to faculty salaries?  Zero.  None of the accrediting agency's business.  Research?  Zip.  Whether a professor is full-time or adjunct?  Zilch.  None of these things has any bearing on the interests that government should be protecting.

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At my law school, and I suspect at many others, most classes were taught by full-time faculty, whereas the more "practical" educational programs (e.g., legal writing courses and law clinics) were taught by adjuncts and part-time instructors. I can say unequivocally that I learned more from the adjuncts and part-time instructors than I learned from any professor. This is because the adjuncts and instructors had real-world experience as attorneys, whereas the professors had spent most if not all of their careers in the ivory towers of academia. I'm certain I am not alone in this.

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