TO THE WALL STREET JOURNAL (but never published)

FROM PAUL D. CARRINGTON

RE: The American Bar Association as A Cartel

Max Boot’s editorial on law school accreditation (Education Cartels Get the Bingaman Treatment, July 5, 1995) fell short of revealing the significant issues raised by the action of the Department of Justice against the American Bar Association Section on Legal Education and Admissions to the Bar.  His error, perhaps befitting the Journal, is to analyze a complex political issue as an exercise in simple market economics.

As Boot reports, the ABA Section does accredit law schools; its actions do marginally affect the price of professional training in law, and perhaps even the price of legal services.  But he underinforms and misinforms his readers about much else.

First, the economic power exercised by the ABA Section over the schools it accredits is not nearly so great as Boot readers might suppose.  It is not, as he would have it, the only institution accrediting law schools.  The Association of American Law Schools accredits its member schools, maintaining what may be in some respects slightly more rigorous standards than the ABA.  So does the Order of the Coif, an elitist institution that maintains honorary organizations only at those law schools that it deems most deserving of professional dignity.  It is true that many states require bar examination candidates to show that they have graduated from an ABA-approved school; that makes it seem to the uninitiated as if the ABA were wielding a nuclear device capable of destroying a law school that displeases it.  But that observation ignores political realities.  As a practical matter, the ABA can jawbone, criticize, and embarrass, but it has demonstrated very little will or capacity to close law schools or prevent new ones from opening..  The Section did try to close the Oral Roberts University Law School a decade or so ago, on grounds related to religious qualifications for its law teachers, but the Section was voted down in the ABA House of Delegates.  What that event illustrates is that even a new law school, if it has any natural constituency, can command enough political clout to beat the Section on Legal Education and Admissions to the Bar, even in on its own turf.  No state university law school need fear being disaccredited, for if it were seriously threatened, its local state supreme court would withdraw its recognition of the ABA accreditation process, or face unacceptable pressure from the school’s alumni.

Boot invited his readers to suppose that the ostensible aim of law school accreditation is to protect the public from incompetence in the performance of legal services.  While one can find rhetoric in that vein here and there, it is not so.  The organized bar never provided much protection of that kind, and all but quit trying decades ago.  Because the unauthorized practice of the law is seldom punished, or even questioned, there are hundreds of thousands of Americans providing legal services as part of their work as realtors, social workers, architects, accountants, or insurance agents, or in a score of other employments.  Thousands of non-lawyers appear daily to represent parties in arbitration or mediation proceedings, or before administrative agencies.  Lawyers thus compete openly with other providers in almost every area except litigation in court; none of those other providers of legal services has ever been required to attend a law school.  If professional education in law were necessary to secure technical competence to perform legal services, we would be awash in incompetence.

Seeing with the eyes of one smitten with elementary economics, Boot looks behind this ostensible purpose to find the motive known to economists, greed.  He supposes, along with Dean Velvel, that the ABA’s interest in professorial salaries and working conditions are driven by the greed of law teachers, and that the lawyers engaged in the work of the Section are striving to raise the professional incomes of lawyers.  There are facts at odds with each of these assumptions.  If the ABA wants to protect lawyers from ruinous competition, they are doing a spectacularly bad job of it.  Accredited law schools are graduating thousands into the profession each year who will not find full-time professional employment.  In recent decades, scores of new law schools have been allowed to open despite the manifest absence of any public need for more lawyers.  Every day, lawyers are ruined by competition.  And, if law teachers are striving to use accreditation to extort higher salaries for the gratification of law teachers, it is odd that the Association of American Law Schools, whose officers are all law teachers, seldom if ever in its accreditation process raises an issue about the level of compensation reported by a member school.

To understand professionalism, at least in America, one needs to drop the economists’ blinders and recognize that money is generally a secondary consideration to social status.  To professionals, money is often a counter for status; that is why most are concerned only with their relative earnings vis-à-vis other members of the profession, and seldom compare themselves to pop stars or center fielders.  In our country as much as any, social status is associated with academic credentials.  The relative status of the profession is chiefly what law school accreditation is about.  While law teachers are not unconcerned with their compensation, it is often practicing lawyers engaged in accreditation work who are troubled about the salaries of law teachers, because they view those salaries as a measure of the relative status of their profession.  Low academic salaries are regarded as socially demeaning to the whole profession.

Boot erroneously reports that the ABA Section has been trying to impose the Harvard “high-overhead” model of legal education on other schools.  The Harvard Law School has educated scores of thousands of law students in this century with the lowest-overhead in elite American professional education.  Compared with medical schools, or, God save us, graduate school programs, there is no American law school that is not a paragon of economic efficiency.  Law teachers even do their own grading, everywhere in America.  When the ABA Section presses for relatively “high-overhead” programs of legal education, it seeks not so much money as status comparable to other “learned professions;” it wants lawyers to be taught by persons who are roughly as elite as medical school professors or graduate school faculty.

Boot likens the American Bar Association to the American Medical Association.  It is true that the medical profession is a model of what some lawyers would like their profession to be.  But when the medical profession conducted its campaign in the early decades of this century to eliminate scores of substandard medical schools, the legal profession did not follow.  When medicine capped the number of doctors and drove aspiring students into foreign medical schools, no comparable action was seriously considered by the legal profession.  The reason, recognized in a 1921 report of the Carnegie Foundation and acknowledged only reluctantly by many in the bar, is that the legal profession is part of our political system.  The Constitution of the United States, and of every one of the fifty states, invest the courts with substantial political responsibilities.  While this reflects an ambition to infuse democratic politics with an element of elitism, it is important to our legal system to keep the legal profession as open to persons aspiring to political leadership as it can be, consistent with the need to preserve the social status of our legal institutions.  Too much elitism in law or too little both threaten the quality of our government -- a moderately elevated, but not too exclusive, status for the legal profession has, in our culture, significant value to the public who depend on stable government to sustain much else, including market capitalism. In the tension between those two ambitions to be both open and elite lie the issues of law school accreditation.  Simplistic economic analysis misses both points.

For a quarter of a century, I have been an acid critic of the ABA Section.  If there is a name less favorably known to the staff of the Section than Dean Velvel’s, it may very well be mine.  The Section has consistently over this time abused its power.  It has been captured by every trendy fashion in education and in politics.  It has lost sight of its legitimating function of maintaining minimum academic standards to push each law school, however elite, to be more elite than it is, eliteness being measured by standards conventional to the academic profession, irrelevant as those may sometime be to the public mission of the bar.  Because it has frequently been thoughtless; it has imposed significant, unnecessary costs, most directly on tuition-paying students; and it has laid a moribund hand on creative thought about legal education.  The real adverse effects of misaccreditation on the market for legal education are surely quite small, but they do provide a suitable occasion for bringing the accreditation enterprise up for public examination.  But no good can come of that scrutiny if the informed public regards the matter as just another exercise in market economics.