(How) does the ABA learn?

It is no coincidence that the first six months of the Trump 2.0 administration has brought close scrutiny of the work of the American Bar Association [ABA]. Skepticism among a great number of pundits and officials, not limited to hard core Republicans, reins with respect to what I will call the “big” ABA, the leading association of lawyers in the U.S. I say big ABA to distinguish it from the ABA Section on Legal Education and Admissions to the Bar, the group that is largely insulated from the ABA proper and which handles accreditation of law schools and oversees, as a de facto matter, the credentialing of lawyers within the states and territories. The criticism of both the big ABA and the ABA Legal Ed Section has been withering. And more than other eras in which these associations have been heavily scrutinized, there are major changes underway in how other government institutions interface with the ABA.

To canvas this very briefly, the ABA has come under fire for its evaluation of federal judge candidates. The ABA is seen as much too woke and much too biased. The Trump administration has made crystal clear that it will not pay heed to ABA recommendations and so it would seem that this large group of lawyers will largely become sidelined as judges are nominated and evaluated in the coming months. We should expect a continuing torrent of lawyers and others who will chime in, as is their right of course, when a judge is being considered (see the recent letters on Emil Bove, the new 3rd circuit judge). But no longer will the ABA be in a position to speak in a united voice, and with what has historically been a decent amount of influence, over the process of selecting judges.

As to the Legal Ed section, here the criticism from Trump and his followers, including conservative voices in the states, is rather consequential. That is to say that the folks are highly critical of the ways in which the Section has been carrying out its accreditation functions. DEI is a flash point, and specifically the lengths to which the Section has gone to insist on diversity in admissions and faculty hirings. The standards themselves are not new, but the political tides have turned against imposing DEI requirements (not to mention a major Supreme Court case from a few years back limiting the use of race in admissions). This criticism has often been joined with a rather longstanding concern about the micro-management of law schools by the Section, and ways in which the heavy hand of regulation has made legal education more expensive and less innovative. Although these critiques are not new, they are steadily building up an impressive head of steam, and the Section is already under assault by those who would, to flip around the old saying, end it, not mend it.

Leaving to one side questions about what should or should not be done, let me take a step back and ask the question pertinent to these battles: How does and should the ABA learn? Supposing that the right approach here is not abject defiance, can we expect these twin entities — the big ABA and the Section on Legal Education — to learn from their mistakes, make course corrections, and develop and sustain strategies that enable them to perform functions of value and benefit to lawyers, law schools, law students, and others with a stake in the welfare of the legal profession?

The ABA’s modus operandi is the creation and sustenance of various policies relevant to the legal profession, including so-called model rules, crafted to provide state regulatory authorities a set of off-the-rack regulations and guidelines to maintain good standards and best practices in the legal profession. The most substantial and enduring of these regulations are those involving professional responsibility, including a range of responsibilities pertaining to clients, legal actors within the system (such as judges), and the general public. These policies are produced by the hard work of committees — and the ABA has legions of committees — and vetted through a labyrinth of overseers, including the House of Delegates and the Board of Governors. It is pertinent to the topic of learning to note that all of the decisionmakers are lawyers. Moreover, the key decisionmakers, in committees and elsewhere, are volunteers, not public officials. They come from the bench and the bar, and also from academia. They lend their expertise and their insights to elaborate schemes for advancing objectives, all under the rubric of the supreme goal of “defending liberty” and “preserving justice.”

In the trenches, the ABA is a fundamentally conservative organization. Its history (dating from the 19th century) illustrates the tacit, yet tangible, goal of protecting the interests of lawyers. An unremarkable objective, when we think about the omnibus goals of trade organizations generally. And yet this persistent goal of protecting and enhancing the welfare of lawyers becomes more problematic, or at least more complicated, when we stop to note that the overall goals of defending liberty and preserving justice are public goals and, further, lawyers are officers of the court with responsibilities to look after the welfare of the general public, a public that constantly interacts with the justice system and has a deep and broad stake in the good work of the justice system, even if not narrowly invested in the business of lawyering. I remember the exhortation by the chair of the Commission of the Future Services, on which I had the privilege to serve nearly a decade ago, that we should think of our remit as improving the well-being of those impacted by law, not the well-being of lawyers. This was a powerful and inspiring sentiment, although time in ABA work for the next decade-and-counting would persuade me that this was a rather unrealistic objective given that we were nested in an organization that would persistently look after the collective interest of lawyers.

All this brings us to the question of learning. The ABA is captured in the classic sense of the term by groups of lawyers who are looking out for their welfare as lawyers. This doesn’t imply a criticism, for this is after all the aim of a trade organization created explicitly to advance lawyers’ interests. Nor is lawyer welfare necessarily at cross purposes with the interests of those who are served by law. But it does mean that the public can be mislead into thinking that the ABA is really, truly, consistently going to act on behalf of the public and with its best efforts to improve the justice system. Indeed, it is not too provocative to say that when the justice system is improved by ABA decisions, that is a happy by-product of its efforts, not the result of avowedly justice-centered initiative.

Let me be more specific by reference to two examples, drawing on a personal anecdote. We know that there is a crushing access to justice crisis in the contemporary United States. Lawyer self-interest is not necessarily the cause of this crisis, but we should all agree that such self-interest impedes efforts at ameliorating this crisis. Walls and moats that keep out para-professionals from furnishing support and even direct legal services have been preserved not only through ubiquitous “unauthorized practice of law” [UPL] provisions in state law, but also through the ABA’s longstanding blessing on UPL rules and, moreover, professional responsibility rules that are resolutely lawyer centered. The ABA’s consistent opposition to non-lawyer investment in and ownership of law firms (distinctly out of sync with the mothership of the common law, the United Kingdom) arguably makes the A2J problem worse. It can hardly be said that the ABA has consistently put the A2J crisis high on its agenda, although we should be fair in saying that there are occasional resolutions and task forces that indicate a concern among many constituencies within the ABA (and even some of its leadership) that speak to the crisis. The bottom line is that when the ABA could be a powerful force for substantial reform, in the direction of widening access to justice and undertaking real innovations that would make change, they are often notably quiet and, in the worst case, obstructionist. “Is this good for lawyers” is often the question, instead of “is this good for the justice system?”

My anecdote comes from my experience as first a member and later the chair of the ABA Center for Innovation. This was an outgrowth of the Futures Commission previously mentioned. It was institutionalized as a way of advancing innovative endeavors within the ABA. Many of us had high hopes for the Center. These high hopes have, sadly, gone unrealized. In 2020, what Center members thought of as a fairly uncontroversial resolution that would have called for more innovation in the provision of legal services, without describing exact strategies for carrying that out, was rendered spineless by spirited opposition and, worse yet, back office politicking. Shrewd ABA operators first insisted on inserting provisions into the resolution that in essence said that experimentation with non-lawyer legal services provision should be considered, except in the areas of housing, debt collection, immigration, and family law — yes, in essence, all of those areas of law in which lawyers had failed to provide adequate service and in which non-lawyer support was most needed. Further, notorious opponents of change (many staffing what is called in ABA circles the “big five” bar associations) managed to insert a eleventh-hour provision that insisted that no effort to roll back Model Rule 5.4, that being the prohibition against non-lawyer ownership of law firms should be considered, much less undertaken. This instantiation of the controversial Rule 5.4 was further strengthened a couple years later, as though to make the point crystal clear: Keep your hands off Rule 5.4 and the scheme that maintained a monopoly of lawyers over law firm ownership. As though this wasn’t enough to defang the work of the Center, presidents of the ABA started weakening its work by appointing folks lukewarm about innovation. A fairly recent ABA president went even further by appointing a couple folks who are infamous for their skepticism about reform and antipathy to anything that could be styled as innovation. So much for an innovation center in the ABA.

Theories of organizational learning teach us that there must be systems in place that enable organizations to discern errors, learn from failures, and incorporate feedback in order to adapt and innovate. One prominent theorist has noted the value of what he calls “double loop learning.” Such learning not only correct errors based on existing rules or assumptions (which is known as single-loop learning), but also question and modify the underlying assumptions, goals, and norms that led to those actions. The first loop uses the goals or decision-making rules, the second loop enables their modification, hence "double-loop." Such learning is, I would add, synthetic, iterative, and evidence based. Moreover, organizations that are limited in the construction to members from one profession or one discipline would greatly benefit from incorporating voices and perspectives from outside the tent. In our work on the Futures Commission, for example, some of the more imaginative contributions came from non-lawyers, including, especially, technologists, public health professionals, and social workers, and also from lawyers abroad.

The ability of an organization to do the hard work of revisiting existing practices, in light of information that suggests that business as usual is often bad business, is highly prized and indeed fundamentally necessary. Relatedly, the organization should, as in double-loop learning, reexamine existing norms and goals and also the assumptions about present states of the world that underlie those assumptions. The ABA has had difficulty is doing this, and so it is hobbled in its ability to learn. It is tempting to think about this as primarily a matter of interest group capture, that is, as a problem that stems from the brute fact that lawyers are habitually committed to thinking only about the well-being of lawyers and that the primary organization of lawyers is structurally committed to doing so as well. But this is too pat an explanation. An organization of lawyers need not necessarily be exclusively lawyer-centered. Accomplishing the twin aims of defending liberty and preserving justice requires the collective work of myriad stakeholders, including but not limited to lawyers. A lawyers’ organization can understand that — or, sticking with the same thing, it can learn that. By focusing deliberately on efforts that enhance the well-being of the justice system, a system facilitated by, just as it facilitates, the rule of law, the ABA can better learn as an organization, and can simultaneously represent the best interests of lawyers, as it should, while improving the system for the public interest. How to navigate difficult issues where these interests collide will be difficult to be sure, but the project of organizational learning when done right is to develop mechanisms that assist in negotiating disputes and, if not optimizing, than at least satisficing. Doing that would lead to a better ABA. And a better ABA means a better justice system.

Turning to the ABA Legal Education section, here the challenge is similarly acute, although not intractable. As I and others have written, the Section does important work in protecting the interests of law students and ultimately of the general public in implementing and maintaining standards for acceptable legal education. The goal is a laudatory one, and while there is something to the idea that we could experiment with entrusting the responsibility of good legal instruction to the schools themselves, albeit with some minimal requirements of information disclosure to assure that an unwary public know that is happening under the hood, we have arrived at a system that looks for some appropriate amount of regulation to protect consumers (including but not limited to law students) while also preserving a wide space for innovation and experimentation. That all said, we are in a period of moderate discontent (in some quarters, great discontent) with the system as presently constructed. Much has been said, with which I broadly agree, about the unnecessarily burdensome regulations imposed on law schools, regulations that build from premises that are infrequently evidence based and data driven. The highly misguided effort underway to impose a greater quotient of experiential learning requirements is one conspicuous example. Prof. Derek Mueller has thoroughly demolished the theoretical and empirical case for this revision, and a large number of deans have vigorously argued against it. Leaving aside the particulars of this debate over one regulatory standard, it is remarkable how little the current Section Council seems willing to learn in its effort to impose rapidly this new, expensive requirement. And yet this is of a piece with many efforts in years past. The requirement of a “valid and reliable” admission test, for example, is out of whack with the pattern of regulation in other professional settings and, moreover, there has been precious little truly exemplary work done by the Council to interrogate either the fundamental question of what value a particular privileged test, such as the LSAT, provides to access and opportunity for prospective students or to the learning culture of the law school. To be sure, there are hoary studies that aim at the question of what certain test scores tell us about performance in the first year of law school, but these assessments ultimately raise more questions than they answer. Further, this is little systematic effort to connect certain tests to success as lawyers (a problem not unconnected the continuing debate over the relevance of the present bar exam to that such question). More narrowly, the safe harbor of the LSAT has famously impeded experiments in other forms of assessment (be it the GRE or the new and innovative JD-Next program). Even when the ABA lowers the drawbridge just a smidgen, their actions are frustratingly begrudging and bureaucratic.

The problem is not the absence of well-meaning volunteers and staff in the Section. The Council is typically made up of diligent, experienced legal profs from many areas of the profession. And the Section has been ably led by highly skilled individuals, such as Jennifer Rosato Perea and, before her, Barry Currier. Problematic is the capacity and commitment of the Section to engage resolutely in organizational learning. Revisiting premises, ideating, gathering meaningful data, analyzing these data with well-trained social scientists, experimenting with different structures and strategies of regulation, and, finally, taking a fresh look at where regulation is unnecessary and should be rolled back . . . These should be central to the project of the work of the Section. Organizational learning should be preceded by best assessing how to learn. These are neglected, yet important, lessons which both parts of the ABA herein discussed should learn in order to stake off attacks by opponents who would take a sledgehammer to the organizations, possibly leaving us worse off than we are now.