Is The ABA Worsening The Law School Crisis?

hotel suiteIt’s a common horror movie trope: The person who’s supposed to be helping everyone get out of harm’s way turns out to be causing it in the first place. Is the law school crisis—entailing six-figure debt loads for students and sinking enrollments for law schools—actually being aggravated by the American Bar Association (ABA), which claims to “promote the highest quality legal education”?

A Forbes article published on Thursday suggests that could be the case. George Leef, a Duke University School of Law graduate who serves as the director of research for the John William Pope Center for Higher Education Policy, writes that the ABA has a “stranglehold on legal education.” Why? The ABA’s accreditation standards prevent schools from adapting to the changing legal market.

For example, the ABA’s faculty-related requirements are rather unrealistic. Many students would probably prefer to be taught by at least a few professors who practice law on a day-to-day basis, but the ABA has mandated that students be taught mostly by full-time, tenured faculty members. “It’s as if the hotel industry could mandate that all hotels must have king-size beds, Jacuzzi tubs, the plushest of carpeting, and state-of-the-art TVs, all justified by the twin considerations of ensuring quality and protecting the consumer,” Leef writes. It’s almost too obvious to say, but I’ll say it anyway: Students would probably prefer to pay less, too.

Another example, which Leef doesn’t explore in detail, is online education. While online programs have become increasingly popular in the MBA world, the ABA has yet to accredit a single online-only JD program. Members of the legal community can tout the value of the traditional Socratic method all they want, but the fact of the matter is, education is going virtual. Instead of ignoring this all-but-inevitable shift, why not give law schools the option of adapting? Though online programs are expensive to develop, they would make law school far less prohibitive for nontraditional students—e.g., students who can’t afford to quit their jobs or leave their families behind. Making law school open to different kinds of applicants might even boost enrollment.

Recently, the ABA has budged a little bit: It gave the green light to a hybrid program at the William Mitchell College of Law. The program, in which students will earn half their credits online and half their credits on campus, is scheduled to launch in January 2015. Hopefully, that’s a sign of things to come.

But even if the ABA changes its approach to legal education, that change is likely to arrive at a sluggish pace. Leef suggests a solution that bypasses the ABA entirely. Right now, most states either prohibit or delay people who want to take the bar exam without having first graduated from an ABA-accredited law school. But what if anyone could take the bar exam? What if whether you passed mattered more than how you prepared? Perhaps lawyers who had studied on their own would be less qualified, but they would also be less expensive—and when you don’t have the means for top-notch legal representation, a lesser lawyer is better than no lawyer at all.

Leef, for one, is in favor of a freer market in legal education. “Then and only then will we get robust competition among existing schools and an open field for new forms of legal education,” he writes. It’s a noble idea. Unfortunately, state legislatures aren’t known for being quick to change, either.