After Law School Deregulation
posted by Dave Hoffman
As our regular readers know, I’m no fan of the ABA accreditation process. It is expensive, it focuses on the wrong questions, executes like a bureaucracy, and it raises the costs to purchase legal services while depressing the supply of lawyers. That is: the ABA works (not particularly well) to serve current lawyers, while (diffusely) harming current and potential students and lay consumers. Like Brian Tamanaha, I think the ABA ought to be stripped of its power to regulate law schools.
But what then? Or, as the late, great, Larry Ribstein wrote, what happens “after the fall of regulation.” There are four (well-known) secular trends to consider:
- Consistent with an overall decline in civil life, local, state, and national Bar associations are in severe decline. Such associations’ capabilities (intellectual, social, economic, political) are at lows not seen since the early part of the 20th century.
- Jobs - crucially, including state government jobs – aren’t coming back.
- We’ve only begun to see the effects of technological disruption of legal practices.
- Educational accreditation is increasingly professionalized (outside of law), requiring the efforts of ever larger numbers of people to manage it. Accreditors are their own interest group.
When I put this together, what I see looming is the eventual loss of ABA accreditation power, as the association, increasingly hollowed out, surrenders its accreditation power to concentrate on its state-centered monopoly and “fighting offshoring.” For a while, local bars will try to hold onto incumbent-protecting Bar Exam credentialing rules, but pressure from other states (Nevada and Delaware!) will undermine that practice. At that point, I worry, the local university accreditors will sweep in and impose a set of suffocating new and different accrediting requirements, which will be even less tied to the unique situation of professional law schools. We’ll know that this day has come when HLS comes out with an elaborate webpage mapping its curriculum, and Yale is told it has to do interim assessments instead of one final exam. Pitted against this trend toward regional (non-legal) accreditation will be distance teaching, which, ultimately, will differentiate law schools back into the regional and national silos they were in in the 1950s.
Sound about right?