Maybe law school accreditation hot water has been brought on (at least in part) by the law schools themselves?

Another shoe has dropped in the attack on the citadel of ABA law school accreditation. At the beginning of this month, Alabama announced reforms that bring it a more or less common place with Texas and Florida. Other states are actively considering similar reforms. At the same time, the ABA Council continues its internal evaluation (may we say reform?) efforts through the work of a special committee. Change in one form or another seems just around the corner; indeed, in the states just mentioned, it is already here.

Conventional wisdom among those (myself included) who have been strongly critical of the ABA’s accreditation performance is that many of the problems originate from within the ABA Council and management. To be sure, the Council is a “they” not an “it,” and turns over frequently (as does management, albeit less frequently), and so any brickbats directed at the law school accreditors must acknowledge that there has been a diversity of voices and viewpoints over time and not every single person (volunteer or employee) should be viewed as an opponent of change. In fact, and without naming names, I can easily think of folks I know very well who have been highly skeptical about the ABA’s performance over many decades and have worked hard within the system to drive the Council toward real reform.

And yet with these caveats out of the way, we return to the common view that the ABA accreditation team has been neglectful of external pressures to change their ways, and in some cases has double-downed on standards and approaches that are anachronistic and unimaginative — this well before they become politically toxic, as is the story of what will someday come to be called the Trump years.

Let me suggest a different group who bears some responsibility for the glacial pace of change, and that is the legal academy itself. The academy, by which I mean law school leaders and also invested, attentive law professors has, by its own deep conservativism, excessive caution, and lassitude, failed to construct models of and practices in legal education that are adaptive to contemporary conditions and circumstances. In the process, they have perhaps failed to develop administrative foundations and mechanisms that might have significantly deflect attention from accreditors on the lookout for educational deficiencies. Moreover, some of these failures have left law schools especially vulnerable to external critics, especially from the Right currently, searching for reasons to press and sometimes even bully law schools to reconfigure their agendas. In short, law schools are complicit in sowing some of the seeds that is damaging the edifice of accreditation. (And, to come early to one part of the punchline, it is possible, if not plausible, to imagine that these same law schools could be allies in the effort to maintain some decently robust, comprehensive, national scheme of accreditation).

Here are a few scattered examples of this problematic alignment of interest and incentives. Readers may have others (and of course may see one or more of these as inapposite)

Costs

Law school tuition has ballooned over the past many decades. This has been true in private and public schools alike and, while there are outliers (typically public schools in relatively low-cost-of-living states), law schools in the aggregate by exercised their discretion to ratchet up tuition to extraordinary levels. While law school enrollment on the whole has been fairly inelastic, the burdens on young lawyers have been substantial, with aggregate student debt skyrocketing and, with it, impacts on the welfare of generations of law graduates.

Debate has long been raging on a matter that ultimately seems rather impervious to certain answers or even to serious empirical analysis, and that is whether these tuition increases are the result of higher educational costs that, in some measure, are driven by accreditation standards and other external influences or whether greater tuition revenue has given the space to law schools to increase their costs — in particular, the fixed costs associated with faculty, as well as bricks and mortar and expanded curricular offerings. We don’t know for sure, and law schools are not telling. Still and all, we do know that some of the tuition hikes has brought in revenue from students paying sticker price in order to subsidize other students who are especially craved by law schools looking to increase their credentials. And we can allow for the possibility that some law schools are using these cross-subsidies in order to support students in financial need. (Being equivocal here reflects my skepticism, widely shared, that need is nearly as much a driver for tuition spike as increased discount rates in order to chase higher score students in the fierce competition among law schools for the “best and brightest”).

Whether and to what extent this pedal-to-the-metal strategy will be sustainable in the long run, especially given the looming student loan caps, remains to be seen. But unquestionably it has become routine over time, and it has proved fairly resilient to major change, either through applicants voting with their feet to move to lower cost law schools or to avoid law school altogether, or through external pressures — at least until the enactment of loan camps in the Big Beautiful Bill. Looking backward, it is striking that law schools did not, on the whole, make responsible, strategic adjustments in their fiscal structures so as to limit what has been unquestionably deleterious outcomes for indebted students and alumni and, further, to stave out political pressures that would augur significant impact on law schools’ bottom line. The impact of the anti-law school (“scamblog”) movement of a decade or so back was ultimately rather modest. Tuition continues to rise and law school enrollment has remained relatively stable. To be sure, the overall JD population is a consequence of the applicant pool annually and over time. However, law schools have been perfectly free to decrease the size of their classes and adjust their cost structure, in order to account for, say, a changing job market, the financial welfare of their students and graduates, and other considerations that are affected by size. Bottom line: Law schools have charged more and they haven’t adjusted the sizes of their classes to any meaningful extent, with a few exceptions and leaving aside those schools who simply came up short in the enrollment race for one or a few years. It you brought someone down from Mars and tried to explain the choices of law schools over the last, say, forty years, it would be rather hard to explain.

How does this relate to the general subject of this post, that is, with the present predicament of accreditation? Law schools might have worried greatly (and not merely griped on occasion) about accreditation rules that imposed high costs on their students if they thought that this would, as we could expect, create a spiral in which they would need to enroll a large number of students to ensure that these costs would be met. No serious look at the economics of legal education would make a convincing case that the marginal cost of educating the additional law student is equal to the marginal revenue generated by that student. Think of such big ticket items as tenure-stream faculty, and the baked in costs of not only salaries (about which, to be clear, the ABA standards are agnostic), but research support that enables faculty to do scholarship and resources that enable clinical faculty to implement experiential learning. Not to mention the library and . . . you get the point. Accreditation rules impose constraints on law schools in the form of costs. Law schools that might have wanted to run a law school with, say, a student body a third of the size and with modalities of instruction that would yield a more efficient, and also financially less burdensome, program would be hard-pressed to do that given accreditation rules. But lest we see the ABA as the big bad wolf in this story, let’s acknowledge that law schools have enjoyed the freedom that comes with bringing in boatloads of revenue by maintaining large class sizes, charging sky-right rates of tuition, and putting this revenue to use in an arms race for ever-better students, the most attractive faculty, and other good things that the “top” law schools enjoy. It is perhaps only a bit of an exaggeration to say that the cost drivers reflected in accreditation standards are not so inconvenient for law schools dead set on pursuing their traditional strategies of “drill baby drill.”

Learning infrastructure and the exceptionalist illusion

Law schools have long thrived on pursuing, and successfully advocated for, two big initiatives with respect to the faculty (and frequently also administrators): One is that the law school requires full-time faculty with appropriate job security and the other is that whatever economies of scale a department embedded in a general university might yield, legal education is sufficiently unique and special that they really need to be permitted resources that enable them to carry out their distinct educational programs and priorities as they best see fit. The law school accreditors have worked hand in glove with law schools on such advocacy. The ABA standards are chock filled with requirements that foreground the distinct nature of legal education, and they are scrupulously configured to impose conditions on law schools that operate within universities — which include, after all, the vast majority of existing law schools. It is the rare dean in my experience that pays any serious attention to regional accreditation requirements that apply to the university as a whole. Deans, as well as their provosts and presidents, well understand that the ABA is the relevant fulcrum of program mandates. And the standards have long been organized around the principle that legal education necessitates an exceptionalist scheme and structure.

This marriage of convenience is often inconvenient for the consumers of legal education, not only because of the difficult matters of high costs described above, but also because these special mandates impose redundancies that are often wasteful and sometimes problematic when considered in a university environment that strikes for general success and economies of scale. Among the examples that come to mind are separate records management offices and systems, psychological/counseling services, information technology (including enterprise software systems and such). In an age of AI, we often see students entering from universities where they have been exposed to certain AI products and policies to find law schools having adopted what vendors insist are appropriately bespoke services that are tailored to legal education as such. Maybe this is just as it should be. But note that the accreditation structure does at least nudge, if not shove, law schools toward developing pedagogical and support systems that are seen as appropriate to law.

When the scaffold of law school accreditation becomes shaky, as it has presently become, it becomes unclear whether there exists a safety net of appropriate consumer protection regulation.

Transparency

One of the Achilles’ heels of modern legal education has been the disincentives toward transparency. Law school leaders typically disclose only what they are forced to disclose. Most disclosure requirements emerge from ABA standards; some from US News pursuant to their rankings (although there is much overlap between ABA & USN); and the remainder are made up of university-wide accreditation requirements, and, in bad times, requirements that come from litigation or are compelled by state and local authorities. Competition among law schools creates what is essentially an iron law of “keep quiet.” Deans are wary of disclosing their strategies, tactics, and experiments; and whatever goes out into the legal education ecosystem as best practices should be viewed as grains of salt and not the whole salt shaker, because some of the best tricks are kept to the law schools themselves.

Law schools could collectively require much more by way of disclosure, through ABA (and other entity’s) accreditation rules. Such disclosures could not only assist the ABA with their consumer protection functions, but, and this is my main point here, help law schools better understand what kinds of practices and strategies are out there in the world, the borrowing of which could improve the performance of law schools. Accreditation history suggests some care in how information is disclosed. More specifically, litigation over the ABA’s role a few decades back resulted in a consent decree that limited the power of the ABA to collect salary data. Whether assembling and disclosing such data would have truly violated federal antitrust laws is a legal question well above my pay grade. However, there are many other elements of law school functions and activities whose disclosure would benefit the commonweal. Nonetheless, law schools are not very transparent and without some meaningful collective action, are rather disincentivized to work with accreditation authorities to change the status quo ante.

An even deeper dive into the nexus between law school decisionmaking and the accreditation system would yield other examples, examples illustrative of my general point that law schools have created some of this hot water that the ABA is presently in. When we view the current work of the Council in rethinking their regulatory standards in the best possible light, we still have reasons to worry that such reforms will not be enough unless schools engage in their own soul-searching and develop a greater appetite for internal reform. While law schools conveniently decry ABA overreach, they, paradoxically, benefit in meaningful ways from the present regulatory structures. For those steeped in the scholarship on regulation, this is not a shocking insight. Regulatory capture and the vicious cycle of regulatory standard-setting and implementation are well-studied phenomena. That institutions of legal education should be susceptible to such incentives and stickiness ought not to be surprising to those with experience and interest in serious reform.