Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, discusses David Segal's recent article in the New York Times on the law school accreditation framework.
The article debunked the self-serving claim of the chairman of the ABA's legal education section that onerous accreditation standards are necessary to give students "what they have a right to receive in terms of education" and "protect the public." It examines the experiences of a start up law school in Tennessee, the Duncan School of Law, which is seeking ABA accreditation. The school must have an unnecessarily big library and professors with tenure and time to write law review articles. These requirements enrich law professors at the expense of their students and the public. So, as a couple of former law deans tell Segal, the professors exert their power through the accreditation process to maintain the status quo. In the end, the Duncan School of Law's advocates had to fly to a beachfront Ritz-Carlton in Puerto Rico to meet with the ABA to make a 15-minute argument for provisional accreditation. The ABA's questions showed they were interested in the lawyer market in east Tennessee, suggesting that lowering clients' costs mattered less to them than threatening lawyers' income -- an anti-competitive animus against new, low-cost law schools.
Larry Ribstein, Mildred Van Voorhis Jones Chair and Associate Dean for Research at the University of Illinois College of Law, also analyzes Segal's article in his entry on the Truth on the Market blog and then more substantively explores the problems facing legal education in his paper, Practicing Theory: Legal Education for the Twenty-First Century.
In his blog post, Professor Ribstein calls for a deeper analysis of U.S. legal market:
The NYT article typically fails to articulate the causes and cures of our over-priced legal system beyond the commonplace that the ABA somehow manages to restrict competition. Segal blames the law professors, finding comfort in the scam-bloggers' simple-minded denunciation of high-priced legal scholarship. But since Segal doesn't explain how a bunch of eggheads sitting around writing useless articles came to control the ABA, he sounds like he's blaming the mosquitoes for banning DDT. This narrow focus isn't surprising given Segal's mission, which not to analyze or educate, but to entertain with simplistic narratives and pithy quotes.
So what's really happening? The cause of the current situation, as I make clear in my Practicing Theory, is obviously the practicing bar, a powerful lawyer interest group with an incentive to keep the price of legal services high. Lawyers operate not only through the ABA but also local bar associations. Legal educators (law professors, law school and university administrators) come into the picture because they manage the key instrument for doing so -- the academic institutions that keep the price of entry high. If the lawyers really wanted to make law school cheaper and more "practical" they could do it in an instant.