Barry Currier
Managing Director of Accreditation and Legal Education
The question of whether the American Bar Association should be in the law school accreditation business becomes a topic of conversation from time to time. In a recent piece in Above the Law on the Trump Administration’s, in my view, mistaken understanding and misguided view about the ABA Standing Committee on the Federal Judiciary’s role in the federal judicial nomination and confirmation process, David Lat detoured to comment on the ABA law school accreditation process:
"The ABA does many worthy things as an organization, but it is not infallible. And when imperfect institutions are given special or exclusive authority over important processes, the results can be, well, suboptimal. Just look at the ABA’s domination of law school accreditation (yes, there’s a little competition in this field, but not much). There’s a good case to be made that the ABA’s near-monopoly over accreditation has not been beneficial and that it’s time for a change."
(Lat, “Trump Administration to American Bar Association: ‘You’re Fired,’” Above the Law, April 3, 2017.)
It is a fair question. What is not debatable, at least for me, is the basic question of whether there should be a set of national standards that accredited law schools, as a general matter, must meet to qualify their graduates to sit for the bar exam wherever they wish, and, increasingly, wherever they can find meaningful and appropriately remunerative work. If the ABA law school accreditation process did not exist, someone would invent it. This is the matter I address here.
Fifty-five jurisdictions license lawyers in our system. There are currently 204 ABA-approved law schools. In a world devoid of the ABA accreditation process or something like it, every law school would need to track the education requirements of states where its graduates might seek admission, and every jurisdiction would have to adopt education requirements for bar admission and operate a system to assure that schools from which its bar applicants have graduated are complying with the jurisdiction’s legal education standards.
Some schools send graduates to only a few states on a regular basis, but many schools send graduates to many states. If schools and graduates are not now operating in a national market, we are certainly heading in that direction.
In such a decentralized world, students would have to anticipate where they might want to be licensed early enough in their law school careers to make sure that they have completed the required credits and specific courses and met the educational requirements of each jurisdiction where they might need to become licensed.
A very small number of jurisdictions have pathways to licensure that do not run through a requirement of graduation from an ABA-approved law school,[1] but the overwhelming majority of bar examination takers each year qualify to sit by presenting a J.D. degree from an ABA-approved law school.[2] The ABA process is a de facto set of education requirements for bar admission.
The ABA accreditation process currently costs about $5 million annually to operate. Schools and bar admissions offices expend funds to demonstrate compliance with the Standards and review bar applicant certifications, respectively. The system depends on the kindness of hundreds of volunteers, as well. This process is a cost-effective solution for the very important work of ensuring that those who are admitted to practice have had a legal education that lays a proper foundation, along with the passage of a bar examination, for granting a license to practice to beginning lawyers.[3]
In a decentralized world, each entity (schools and jurisdictions) would need resources for staff, space, and operating funds to accomplish this work. Assume that, on average, each entity would have two staff (one professional and one support), and provide the space and support they would need. Conservatively, the cost of such an operation, on average, would likely exceed $200,000 per entity. Multiply the total of the law schools (204) and the jurisdictions (55) by that figure, and you get an annual cost exceeding $40 million.
While bar admission and the regulation of the practice of law are, and are likely to remain, state-based matters, the legal profession and legal education operate in a context that is largely and increasingly national (and international) in scope. In this context and at this time, the ABA law school accreditation process provides an important service at a very effective price point. It is a $5 million solution to decentralized processes that otherwise would require $40+ million in expenditures.
Further, of course, a decentralized system creates a host of uncertainties and traps for unwary students, many of whom do not know until toward the end of their law school careers where they are likely to seek admission to practice. Schools could (and would) invest additional resources to help students navigate the more chaotic and decentralized world. But the ABA accreditation process can save the schools that work and ease the minds of students already worried about getting started in their careers.
There are risks and downsides to a de facto national set of standards, including potentially some stifling of innovation, control of a national process by a small and perhaps narrowly focused or biased group, and uniformity that may not serve optimally the needs of local jurisdictions. There is also the inherent risk that the Standards, regardless of who sets or enforces them, will not be not be appropriate for the work that they need to do to serve the profession well and protect the public interest. In my experience, there are ways to deal with and compensate for these concerns within a process like the ABA accreditation process. And, there are reasons why it makes sense to locate such a process within the ABA, the most obvious national organization that brings together legal academics, lawyers, and judges.
Circling back to the original idea of this piece, it is clear to me that someone would invent a national law school accreditation process, if it did not already exist in the ABA. We have a responsibility to make the Standards and the process as good as they can be, but there is no serious question that in today’s world a fragmented and decentralized set of education requirements for bar admission would be inefficient, expensive, and very problematic for those who are transitioning from students to new lawyers.
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[1] Five percent of admittees (9.5 percent of bar exam takers) received their basic legal education outside the United States, and a handful of additional passers and takers earned a J.D. at a U.S.-based law school not approved by the ABA. See Bar Examiner, March 2017, pp. 18-19. States allowing non-ABA U.S. law school J.D. graduates to sit for their bar exam include (a) California, which maintains a system of accreditation and approval for non-ABA approved law schools; (b) Tennessee, which admits graduates from the Nashville School of Law; (c) Massachusetts and several other states who have given permission for graduates of the Massachusetts School of Law to sit for their bar exam; and (d) Alabama, where the Alabama Supreme Court has given permission for graduates from two specific law schools to sit for its bar examination. Fewer than 50 individuals in a handful of states qualified to sit for the bar examination based on law office study in 2016. See Bar Examiner, March 2017, p. 19.
[2] Some states, in the wake of adopting the Uniform Bar Examination, have added a requirement that applicants complete or pass a short course on local law. See, e.g., the 2017 Comprehensive Guide to Bar Adimission Requirements, Chart 6). These post-bar exam requirements are not inconsistent with the general proposition that a uniform set of education requirements accepted by every jurisdiction serves the public interest.
[3] This is particularly true for admitting jurisdictions, which pay nothing to support the ABA accreditation process. Law schools currently pay ~95% of the cost of this process. The ABA provides a modest, and diminishing, grant that covers ~5% of the expenses. The project gets additional ABA support for which it is not charged directly, such as HR and accounting.