American Bar Association / ABA, Law Schools, Student Loans

ABA Defends Itself — and Explains Why It Can’t Stop New Law Schools

aba_logo_K.gifEarlier this month, Mark Greenbaum penned a blistering op-ed in the Los Angeles Times, blasting the American Bar Association for not exercising greater regulatory control over law schools. Obviously, I’ve been publicly begging the ABA to do something about the proliferation of new law schools and new law students, hoping against hope that lawyers would be afforded the same kind of professional protection that doctors enjoy.
Apparently, ABA President Carolyn B. Lamm is sick of hearing lawyers and commentators complain about the ABA’s lack of regulatory oversight over the law schools they accredit. Lamm shot back at Greenbaum (and anybody else who thinks there are too many law schools). If you’re hoping for the ABA to step up and stem the tide of new lawyers, Lamm’s message is clear: don’t hold your breath. Here’s the opening to her full-throated defense of the ABA:

To the Editor:
You published a recent opinion piece by Mark Greenbaum. His analysis is premised on incorrect facts from which he draws flawed conclusions. He misstates the number of American Bar Association-approved law schools, ties it to what he describes as a “flood of graduates,” and insists the ABA should “block” new schools. He fails to acknowledge that in fact existing law schools have reduced voluntarily class size and therefore despite a minimal increase in the number of accredited law schools (7% over a 5 year period) first year enrollment grew by only two percent. Hardly producing a “flood of graduates”.

Greenbaum says that there are 200 ABA approved law schools. The ABA website also tells us that there are 200 ABA approved law schools. Lamm explained to Above the Law where she disagrees with Greenbaum’s numbers:

Mr. Greenbaum said: “Today there are 200 ABA-accredited law schools in the U.S., with more on the way, as many have been awarded provisional accreditation.” There are 200 ABA-approved law schools. That number includes the six provisionally approved schools. And while he complained about an increase in the number of schools, as we pointed out, the relevant number is of students. Due to self-restraint by the schools, that number did not increase significantly. Greenbaum is even inaccurate in identification of ABA-approved schools in California. He says the new law school at UC Irvine is among ABA-approved schools. That school has not yet even applied for ABA approval.

Well, in fairness UC Irvine will seek provisional accreditation from the ABA in 2010 — which is the earliest possible time for them to do so.
Still, these are fair points, but not really the heart of the debate here. More from Carolyn Lamm after the jump.


Really, the debate isn’t just about raw numbers. It’s about the control and oversight the ABA exercises over the law schools that are already here, as well as the ones that insist on coming in the future.
The central concern is that the ABA accredits too many law schools. But Lamm disagrees. From her letter to the editor:

Greenbaum’s proposal to erect barriers to entry in the profession and/or to new law schools would violate the antitrust laws of the United States, something the ABA cannot and will not attempt to do. To violate our nation’s laws as we strive to teach new lawyers ethical and responsible practice would offend public trust and disserve future clients. Before so causally dismissing antitrust “concerns,” Greenbaum should consider the basic precepts of antitrust law that ban concerted action to bar entry to a public profession.
He proposes to protect income of lawyers already in practice by clamping the pipeline for bright, committed, energetic and talented new lawyers preparing to serve the public. Rather, the ABA is working to ensure that our profession is open to all from our communities who wish to serve the public. Our profession and those involved in our justice system must reflect our communities. It is a difficult time for all given the economic crisis.

Lamm’s letter didn’t specify how exactly the ABA would violate antitrust law should they make the accreditation process more rigorous. But her response to Above the Law expanded on her concerns:

Neither I nor ABA oppose appropriate and responsible regulation. The antitrust restraint in which we cannot participate is in erecting artificial barriers to entry or limiting students’ entry to the profession. What we oppose is regulation with a goal of restricting the number of law schools, an approach that Greenbaum clearly is advocating. He suggests the American Dental Association “assiduously guards the profession and has allowed respected dental schools … to close for economic reasons and to prevent market saturation.” We can’t speak for the ADA, of course, and the ADA might well quibble with Greenbaum’s description of its practices and rationale. But there is a huge difference between allowing a school to close and his suggestion that the ABA should “curtail the opening of new programs and perhaps even shut down unneeded schools.”
The ABA is responsible to the Department of Education in fulfilling its accrediting function, and a key principle in DoE recognition of an accrediting agency is that it be demonstrably independent of the profession served by the schools it accredits, to prevent the profession from imposing protectionist policies on behalf of those already practicing. That is why the ABA Section of Legal Education and Admissions to the Bar is actually the recognized accrediting agency, and
not the ABA as a whole. The section is required to maintain financial and policy independence from the association, and while it advises ABA governing bodies of its accreditation policies, those bodies do not have veto authority over section decisions. A check of your news archives
will likely show the ABA entered a consent decree with the Department of Justice in 1996, and submitted to 10 years of compliance oversight, over just those kinds of issues.

It makes perfect sense that the DoE has an interest in preventing practicing professionals from choking off the influx of younger, cheaper competitors. But doesn’t the DoE also have a compelling interest in preventing educational institutions from duping young people into incurring educational costs that they can’t afford in a profession that doesn’t have enough jobs for them? The proliferation of law schools doesn’t just hurt lawyers already on the market. It hurts future students, who go to law school relying on a salary that most of them will never achieve, expecting jobs that do not exist.
If law schools were inexpensive, that would be one thing. But they’re not. Law schools are ridiculously expensive, and the costs of the education are going up even though we’re in a deflationary period with regard to legal salaries. New law schools — and the “unneeded” law schools that Greenbaum refers to — are conducting a bait and switch on their prospective students. The bait is high salaries and job security (an illusory promise for the vast majority of non-first tier law schools). The switch is hustling for personal injury work and other unsavory (and not particularly public-interest oriented) practices, as they struggle to maximize their income once they realize that immigration attorneys can’t afford a mortgage. And in the bargain, young students start out their professional lives saddled with enormous debt. I can’t imagine the DoE having a problem if the ABA wanted to step in and do something about that.
Lamm’s letter claims that the ABA is doing what it can to make sure prospective law students know what they are getting into:

On its web site (http://www.abanet.org/legaled/prelaw/prep.html) the ABA however does provide young people who wish to become lawyers with realistic information about the economy and their own prospects for employment. The ABA also strives to help lawyers already in practice to cope with an economy that is a challenge for everyone, and to help their clients weather the crisis until we all enjoy economic recovery.

Lamm further explained to ATL that the ABA is looking into whether or not it needs to do more to keep law schools honest about the employment prospects of their graduates:

Finally, with respect to your specific question about requiring changes in the way schools report salary and employment information on their recent graduates, the Section is in fact looking at ways it might revise its annual questionnaire to law schools to elicit additional information. While there is no evidence that we have seen that schools are inaccurate in their reports, we may not be asking all the right questions, and that is under review. But we also encourage prospective students to consider carefully their decision to attend law school, their choices of schools and how they finance legal education. We are concerned about student debt and the burden it places on graduates. But we do not equate that concern with limiting entry into the profession. As I said in my letter, we believe it is important that the legal profession be open to entry from all elements of society. The law is not and should not be a closed club.

Obviously, the legal profession should not be the exclusive province of a select few. But the unmistakable truth is this: right now, the most important oversight over legal education in this country is performed by U.S. News & World Report, not the ABA. I say again, a magazine has more influence over law school deans than the American Bar Association. There is direct evidence from the federal government that U.S. News has significant influence on something as basic as law school tuition.
And, given the importance of U.S. News, there have been many discussions about how law schools will massage the numbers in order to make themselves look pretty for U.S. News. Should being deferred for a year count as being “employed upon graduation”? What about getting an LLM? What about getting a contract attorney position? What about being a babysitter? I don’t know where the ABA stands on these issues, but I know where U.S. News stands on these issues (yes to all). And so long as U.S. News counts these people as employed, then it really doesn’t matter what kinds of questions the ABA is asking.
Think about that for a second. From behind the veil of ignorance, would you really design a educational system where a magazine has more influence over school administrators than the professional organization?
Somewhere between protectionist policies that aggressively suppress new lawyers and laissez-faire attitudes that turn a law degree into something that can be purchased at Wal-Mart, there has to be a middle ground of sensible regulation. Surely, there has to be some kind of way for the ABA to exert at least as much influence over legal education in this country as a magazine.
Now, I have no idea how the ABA actually goes about exerting that influence. Reasonable people will disagree, and it certainly appears that Lamm is aware of the issues and looking for a way to help. But I think that’s what Greenbaum was getting at.
Sadly, in the end, the only thing that is sure to work will be if prospective law students actually take their heads out of the sand and look around before they leap into three years of education. But have you ever tried to tell a 22-year-old who has grown up on Boston Legal episodes what it’s like to be a lawyer? It’s like trying to convince a dog to use a toilet bowl. Prospective law students just stare back at you as if to say: “Why would I carefully consider the most appropriate options for my life when I can just walk outside and pee all over myself?”
So despite the best efforts of Greenbaum and Lamm and people like me, expect law school applications to keep flowing in.
Earlier: No. More. Law Schools!
New Villain in Law School Debt Tragedy

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