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Monday, January 23, 2017

The Case against the American Bar Association

The American Bar Association is cracking down on law schools but who will crack down on the ABA?

On Friday, January 6, the for-profit Charlotte Law School announced it will remain open despite the Department of Education’s decision to withhold the school’s access to student loans. The crackdown follows the American Bar Association’s (ABA) decision to similarly clamp down on law schools with low bar passage rates.  

There’s plenty of bad things to say about law schools that overcharge students, especially the poorly qualified sort who have a meager chance of getting a good enough legal job to pay back their student loans. With the second-highest tuition in North Carolina, Charlotte Law is certainly the overcharging type. Yet most people don’t consider that the real cause for exorbitant tuition and poor outcomes for law students is both the mandatory bar exam and the ABA’s monopoly on legal accreditation.

At law schools, the debt problem is exacerbated by the dim employment prospects awaiting graduates. More than 10 percent of law students find themselves without a legal job following graduation, and that number seems low when one considers that it conceals poor employment outcomes and large debt loads concentrated in low-tier schools.

Imagine This

To illustrate this problem, picture a hypothetical student named “Ralph.” Ralph scored low on the LSAT, wasn’t well prepared for studying law, but was nevertheless accepted into Whittier Law School in Costa Mesa, California. It cost him $75,986 per year to attend Whittier, amounting to $227,958 in total, all of which Ralph financed with federal loans. He graduated in 2016 and is one of the lucky 22 percent of Whittier students who managed to pass the California bar exam. But Ralph’s performance on the bar exam matters little since Whittier Law’s post-graduation employment rate is less than 50 percent.Only 1% of lawyers go into academia, but accreditation standards demand law schools focus on academia not skill

With no legal job on the horizon, Ralph goes back to being a cashier at Albertson’s supermarket, where he makes $12.52 an hour, and starts paying back his loans. His repayment schedule means he needs to set aside $1,486.12 per month to pay back federal loans. Ralph was one of the law students who contributed to over 2.2 million hours of pro bono work. But, because the ABA prohibits him from being paid for that work, he is also one of the students who will never reap any financial rewards from the $52 million in value that those pro bono hours produced. Ralph is, as they say, SOL.

The ABA is the organization that ensures Ralph’s predicament. In almost every state, if a student doesn’t attend an ABA-accredited school, that student won’t be able to sit for the bar exam. Maybe that wouldn’t be a problem if ABA accreditation was a sign of a good legal education. But it isn’t.

Evidence of ABA’s Ineptitude

A 2012 National Conference of Bar Examiners study assessed 25 skills indispensable for legal practice. The types of classes that teach those skills are not only not mandatory for the first year of study—the most crucial year for law students’ career prospects—but actually constitute only 10 percent of the ABA’s educational requirements. No wonder Ralph couldn’t find a job; he has no marketable legal skills. And even if a law school decided to break rank and teach those 25 skills in 100 percent of its curriculum, the ABA would strip that school of its accreditation since any major curriculum change must be approved by the ABA.Revoking ABA’s accreditation power is appealing, but why stop there? Make the bar exam optional too.

Despite the fact that only one percent of lawyers go into academia, the ABA’s accreditation standards encourage an academia-focused direction. This makes no sense. As eminent legal scholar/jurist Richard Posner explained in his book Divergent Paths, the amount of scholarship produced by those in legal academia which is used by legal practitioners is vanishingly thin.

The law school experience is not only useless to students, it’s also useless to the legal field at large.

It’s remarkable that so few acknowledge the original purpose of the ABA’s power. As George B. Shepherd explains in a Cornell Law article, it was racial discrimination: “Expressing both bigotry and economic self-interest in eliminating competition from new lawyers, the bar acted to stop the influx of new minority lawyers in two new ways: decreasing bar exam pass rates and tightening law-school accreditation.” To this day, there’s a shortage of black lawyers serving their own communities. Truth be told, there’s a shortage of lawyers in public interest generally.

Revoking the ABA’s accreditation power is appealing, but why stop there? Consider the appeal of making the bar exam optional too. An aspiring lawyer could save over $100K on schooling and instead apprentice with a practicing attorney, as would-be attorneys used to do. If that lawyer were good at his job, he would continue to serve his community without the burden of a mortgage-sized debt. If he didn’t succeed, he could leave the lawyering profession without being obligated to pay off a small fortune in loans.

Sadly, until the ABA’s monopoly on legal accreditation is broken, law students and the people they serve will get the short end of the stick.

  • Alex Grass is a Young Voices Advocate and a student fellow at the Floersheimer Center for Constitutional Democracy at Cardozo School of Law.