Paul L. Caron

Monday, October 31, 2016

Muller:  Why Is The ABA Still Accrediting Law Schools?

ABA Section On Legal Education (2016)Derek Muller (Pepperdine), Why Is the ABA Still Accrediting Law Schools?:

Perhaps we have legal education [because] we believe that attorneys should be, somehow, perhaps, well-rounded and well-educated individuals, apart from their ability to pass the bar exam? That would seem to be the driving concern—we think (perhaps you don't, but work with the assumption) lawyers shouldn't just be able to pass the bar and practice law; they should have some kind of training and background before they practice law and something that qualifies them apart from the bar exam's test of "minimum competence." ...

But there is a different, perhaps reverse, form of the question: if legal education provides students with three years of sound education and a degree at the end, why is the bar exam even needed? Isn't graduating from a law school after three years of thickly-regulated education sufficient to make one eligible to practice law? Indeed, it's a reason why the state of Wisconsin offers "diploma privilege" to graduates of its two law schools. ...

[W]hy is the ABA still accrediting law schools given its new obsession with the ability of graduates to pass the bar exam? ... There are two principal, and opposing, kinds of responses one could make to my query.

First, I suppose one could make the claim that if a law school is not providing "minimum competence" to its graduates, then it is hardly providing the kinds of aspirational traits legal education purports to provide and should not be accredited. That's, I think, somewhat misguided. The bar exam is not really very well designed to test "minimum competence." Indeed, it's not really very well designed to test the abilities of lawyers. Timed, closed-book essays that principally rely on regurgitating black letter law (indeed, often greatly simplified, even fictitious versions of law), alongside a series of multiple choice questions, in selected areas of practice designed for general practitioners who arose from a common-law, 70s-era form of the law, are not really something that should be taught in law school--at least, not emphasized. ...

Second, one could say that the ABA needs to have some standards for accrediting law schools, and thisis as good a standard as any to help control the admissions and graduation problems that may be contributing to bar pass rate declines. But this, again, gets back to my opening question--why have accreditation at all? ...

[I]t's worth considering what legal education should be. Perhaps it should still try to provide something different from the "minimum competence" required to pass the bar exam.

But as some law schools have departed from practices that may best benefit their graduates—particularly in high tuition costs; entrenched and inflexible standards; and declining control in the quality of admissions, retention, and graduation practices--it may be the case that we have forgotten what law school ought to be. Its purposes have been lost as we consider it as a kind of necessary rite of passage before one takes the bar exam. In this instrumental vein, distrustful of the operation of law schools, the accreditation process should look mostly at the outputs of graduates.

I don't think that's a welcome development, either on the accreditation end or on the telos of legal education. But it's perhaps the necessary evil that has come upon us, until either schools change their practices or the market improves dramatically. Even then, it will be hard to separate legal education from the bar exam, and that loss speaks more about why the ABA is still accrediting schools in the first place--or why state bars require legal education before taking the bar exam.

Legal Education | Permalink


We have too many law schools in operation. That's why the ABA should stop accrediting law schools, and should begin to tighten accreditation requirements to cull the herd, so to speak, of existing law schools until the number of schools more accurately reflects market demand for lawyers in the real world.

Posted by: Evergreen Guy | Oct 31, 2016 4:03:52 PM