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April 25, 2006

ABA Accreditation

Dave Hoffman has some interesting comments on Concurring Opinions about the ABA's role in accrediting law schools. The relevant part for me has to do with how law school accreditation interacts with the bar exam and professional discipline as mechanisms to ensure a minimum level of quality in the legal profession. Hoffman writes:

I'm unconvinced by the argument that we need accreditation to protect consumers from bad lawyers. This seems like an expensive way to work a consumer protection regime: why not just make the Bar harder to pass? (Yes, I know that I'm parting ways with Solove. But he is, I think, missing the trade-off problem here. We've three options: regulate law school so that it is hard; rejigger the Bar until it is a real barrier and skills tests, or changes the rules to make malpractice claims cheaper to bring and easier to win. Of the three solutions, making the Bar much harder is the most efficient by a mile. Screening is almost always cheaper than remedial action. Screening by a licensing exam is surely better than micro-managing the content of a legal education. The expensive version of the legal education is a signal to potential employers of diligence and acumen, not (really) proficiency in basic legal skills. )

Hmph. I'd say the expensive version of the legal education is a signal of great personal or family wealth or the foolishness of the law student who took on all the loans required to pay that bill. Diligence? Acumen? I don't see the relationship.

Perhaps Hoffman is correct that the most efficient consumer-protection regime would be to make the bar exam a more rigorous barrier and one that actually tests proficiency in basic legal skills. But even if that's true, how could the exam really do that? And even if it were redesigned, how much protection to consumers really get from the fact that each state has its own exam and that exams are only administered twice a year in each state? Consumer protection is one thing; creating great barriers to geographic mobility for lawyers is something else altogether.

And if consumer protection is really the goal of the ABA (and I'm skeptical that it's as important as they'd like the public to think), why not take all three actions Hoffman proposes? Make law school a greater barrier—not by making it more expensive, but by making it more educational (and thereby more rigorous). I would also shorten it to 1-2 years, as I've said before. Then make the bar exam more of a real assessment of basic legal skills, and make malpractice claims cheaper to bring and easier to win. The last reform would also need to include much less secrecy surrounding lawyer discipline; lawyer's disciplinary record should be free and easily accessible to the entire world.

But who am I kidding? I don't have much hope for serious change in any of the above. In light of that, perhaps the best thing about Hoffman's post is that it led me for the very first time to the ABA's Section of Legal Education and Admissions to the Bar. That's where you'll find all the accreditation standards that ensure we all have to mortgage our futures to get a law degree. The site also has a collection of statistics about law school admissions, basic pre-law advice, and bar admissions information. Did you know that you do not need a J.D. from an ABA-accredited law school in order to sit for the bar? I didn't, but that's what this chart (PDF) says. Now that I've almost earned just such an overpriced degree that information isn't very useful to me. I guess it's one of those things to file under “Know before you go...”

Posted April 25, 2006 11:55 AM |

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in California, there are a large number of law schools that are accredited by the state bar only. Graduates of these schools can sit for the CA Bar, but must be licensed in CA before they can go on to other states. I'm not sure that most of them are cheaper than your typical private school. Their bar passage rates are also extremely low when compared with the ABA-accredited schools in CA. I'm sure that there are a number of reasons for this that don't have to do with the intelligence/capabilities of people attending those schools, but it seems like you give yourself a leg up on the bar exam just by going to an ABA accredited school.

Posted by: A at April 25, 2006 12:09 PM

With all due respect to Dave, he's missing two things that I see.

First, legal services consumers face risks from incompetent attorneys, but they also face risks fromm dishonest ones. A tougher bar exam won't screen out evil genius would-be lawyers, or lawyers who enter practice with strong ethics, but whose ethics are weakened later on. Consumers need protection from dishonesty as well. Perhaps Dave would propose parallel systems for dealing with incompetence and dishonesty, but I don't see that as likely to be very efficient.

Second and perhaps relatedly, he makes the mistake of assuming that the cost-benefit ratios stay constant throughout the range of possible levels of diligence. In other words, he misses the possibility that each of three screening options might have an attractive cost-benefit ratio when applied at the current level, and that each of them might accrue proportionally greater costs if relied on more heavily. It's not a question of picking the best method, rather, it's a question of determining the marginal utilities of the various methods and picking the appropriate balance. Ambiv, you get at this above.

Ambiv, are lawyers' disciplinary records secret? Searching for a member of the D.C. Bar turns up his or her disciplinary history. I'm assuming it's a complete history, though I would have no way to know that.

Posted by: josiah at April 25, 2006 02:38 PM

I wrote about a related topic awhile back in the context of lawyers vs. software developers.

I agree with you. Law school and the bar exam, I argued, are effective barriers to entry, but test work ethic and commitment, not intelligence.

There are plenty of people who would be great lawyers and don't because of, among other things, the steps required. And there are plenty of people who become lawyers despite the steps involved.

I also know what you mean about geographic issues. I don't graduate until next year, but I'm already trying to figure out what I'm going to do with the bar. I'm in NYC now (and go to school there), but I'd like to relocate to Pittsburgh. But do I take the NY or PA bar? (they are both offered on the same day).

Getting back to the point - at what point do you set a reasonable minimum and just let the market decide the rest?

Posted by: Tim Marman at April 26, 2006 09:19 PM

Just how is any proposed screening going to prevent conduct such as that shown by an "upstanding" member of the profession at:

Is it acceptable conduct or what discipline, if any should be imposed?

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