Easy Peasy?
Simple in Theory. Harder in the Real World.
How easy or difficult would it be to establish a successor to or a competitor of the current law school regulatory process controlled by the Council of the American Bar Association Section of Legal Education and Admissions to the Bar (Council)?
Conceptually, it should be fairly simple and straightforward.[1] A new organization would form for the purpose of replacing or competing with the law school regulatory process now controlled by the Council. This new organization would adopt standards for the J.D. degree. Law schools would apply for approval by this entity. A number of state supreme courts would recognize that a J.D. degree from a law school approved by this entity would satisfy the legal education requirements for eligibility to sit for the bar and for bar admission. Voilà! It would be done. This new entity might co-exist with the current Council system, or it might eventually replace it.
Before you conclude that this is crazy, consider the following scenarios:
New process driven by law schools. A number of selective/prestigious law schools become disenchanted enough with the Council and its Standards and processes to support an initiative to create this new entity. They inform the state supreme courts of the initiative and state that they would intend to resign their ABA approval and to instead be approved by this new entity once it is established; they encourage the state courts to recognize this entity’s standards and process so that their J.D. graduates may continue to sit for the bar exam and be admitted practice in their states.
New process driven by state courts. Jurisdictions in a number of states with large lawyer populations become disenchanted with the Council’s Standards and processes and lead an initiative to remove or loosed the requirement that applicants for admission to practice must have graduated with a J.D. degree from an ABA-approved law school; the courts agree to recognize this new entity’s regulatory system, creating a second path to qualify for bar admission in their jurisdiction. Law schools could then choose to be approved by this new organization, the Council, or both.
There is a chicken-egg problem here. Which happens first? Would the creation of a new law school regulatory system be driven by law schools or the state courts? Law schools would want to know that state courts will recognize this new entity, and courts will want to know something about whether law schools will join it. That said, these scenarios are not implausible. The more likely scenario is that some law schools and some state courts work together to establish such an alternative law school regulatory system.
As this is written, two state courts – Texas and Florida – have already launched projects to address whether they should change their rules to eliminate the requirement that a bar applicant’s J.D. degree be from an ABA-approved law school; others will surely follow. Moreover, over the years there have been numerous suggestions, often coming from within the legal academy, to substantially modify the ABA standards and process or replace them with something else. The “something else” might be more or less prescriptive; it might be or more or less political in its objectives. Depending on the issue, these calls may come from the left or the right, the woke or the unwoke.
Two points worth noting:
The state supreme courts are in the driver’s seat, as they should be. They have the authority and responsibility to determine the rules for bar admission in their jurisdictions.
The selective/prestigious/elite/T-14 (pick your own number) law schools also have considerable leverage in the conversation about what should happen. That leverage has always been there, but it has seldom been used.
State courts have largely delegated both the regulation of the legal education required to sit for the bar exam and the bar exam itself to the Council and the National Conference of Bar Examiners (NCBE), respectively, resulting in the Council being the de facto national regulator of law school J.D. programs and the NCBE being the de facto national provider of the bar exam. While many state court judges have given generously of their time and wisdom to both of these activities, it would not be accurate from my experience to say that either the ABA law school regulatory system or the bar examination process has been closely watched and supervised by the state courts. That may reflect confidence and satisfaction in the leadership of the Council and the NCBE, of course. However, the authority needed for reform in either activity remains with the courts, and they can exercise it more vigorously if they chose to do so.
Regarding the influence of the most selective and prestigious law schools, consider a somewhat-ridiculous-not-going-to-happen hypothetical: what if the deans of Yale, Stanford, and Harvard Law Schools (just to pick three schools that would likely be on anyone’s list of highly selective and excellent law schools) wrote to the Chief Justices/Judges of the California, New York, and Texas high courts (or pick other courts in large population states) suggesting their intention to resign their ABA approval, offering credible reasons for doing so, pledging to continue to offer an excellent J.D. program, and closing with a short paragraph saying something like, “we sure hope that you will continue to let our J.D. graduates sit for your bar exam.” While this will not happen, does anyone doubt that it would at least start a conversation?
That conversation would be about the schools’ concerns about the ABA Standards and regulatory processes and how they are negatively impacting these and other schools’ J.D. programs, the overall business of the law school, the legal profession, and the public interest.
It was interesting to me in my time as Managing Director how seldom elite law schools engaged with the Council on its Standards or process. The situations that generated the most participation from these elite schools were standards or data collection efforts that impacted, directly or indirectly, the U.S. News law school rankings. My own theory on this is that although their were complaints about the cost and the hassle of the ABA Standards and processes, neither interfered significantly with what these schools wanted to do with their programs, and the costs were not a significant item in their annual budgets. A drop (or potential drop) in the rankings was perhaps a different matter that got their attention.
If it is true that the process of adding a second approver of J.D. programs (or several new approvers) or replacing the Council with a new organization with a different set of standards and processes can be easily described, it is probably just as true that the reality of actually accomplishing this sort of major change would be very difficult, contentious, and time-consuming.
Would it be worth it? Who would organize the effort? Who would own it? How would it be governed? How would it be financed? How might a transition happen? Whatever happens, it will be important to remember the benefits, bordering on the necessity, of a system or systems that are national in scope.[2] That requires careful thinking about the objectives of any system so that it would be widely accepted without the friction that too often arises when one segment of the legal education world wants to insert their agenda into standards that must be accepted by all. Another objective should be to create a system that leaves the maximum amount of flexibility to law schools to design programs that suit their missions, markets, resources, and students.
That is the rub. There are many different ideas about the contours of a set of appropriate minimum standards that should control the law school education that lawyers must obtain before entering the profession. Future posts will consider what a set of minimal standards might be.
[1] A new entity would not need to seek to be recognized by the United States Department of Education (US DoE) as an approved accrediting agency. This makes the process much simpler. No approvals are required other than state court approvals in their bar admissions rules of the new entity and its standards and processes. Law schools would gain access to the federal student loan programs, which is the primary benefit flowing from the ABA being recognized by the US DoE as an accrediting organization, by being part of a university that is institutionally accredited by a regional accreditor; or an independent law school earning that accreditation, as a number have already done.
[2] There have been a number of good comments on this point. I offer some views HERE.