Law School Accreditaton Standards

“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law;’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

                 – Thomas Jefferson, in an 1819 letter to Isaac Tiffany

 

 

Given the history of the American Bar Association and its key role in “approving” law schools in Texas, it seemed only fair to examine this in more detail so as to determine its importance to the government’s monopoly on the law. A scholar in 1978 admitted that:

 

“From its earliest days, the American Bar Association has sought to regulate the training and licensing of the nation’s lawyers. The ABA was founded in large part to improve the quality of the legal profession, and many of its members believed that this could best be accomplished by upgrading the training received by American lawyers and by raising the standards for admission to the bar. Its attempts to improve professional training led to the association to implicitly endorse law schools rather than law offices as the best place to prepare for law practice. Eventually, as it focused on improving the quality of training rendered by law schools, the association set minimum standards for law schools and established a program to accredit law schools that complied with the standards.”

 

Right there, the ABA has been dead set against the ancient common law practice of reading law, allegedly on the grounds that so-called country lawyers were grossly incompetent. Fossum goes on to say that:

 

“To have an impact on the legal profession, the ABA standards have to be tied to the bar-admission standards of the various states, inasmuch as the association as no direct control over admissions. Thus, following its adoption of accrediting standards, the ABA commenced efforts to persuade each state to limit licenses for the practice of law to graduates of law schools that have received ABA accreditation. Despite the importance of the ABA accrediting standards and program for the legal profession and the public, few efforts have been made to explore their influence on the structure of legal education. Virtually no attempts have been made to examine the validity of any of the standards.” [emphasis added]

 

Here we have yet another example of a private special interest who is seeking undue government favor. Just as American eugenicists sought legislative privilege to forcibly impose draconian “genetic purity” statutes, these American bar attorneys sought legislative privilege to forcibly impose “accreditation standards” (that ultimately determine who may be licensed to practice law), whose validity in achieving its stated claims has never been proven. And just like how the Carnegie Institute and the Rockefeller Foundation funded the Cold Spring Harbor eugenics facility, the ABA planned what they wanted the various state bar associations to forcibly implement by way of government:

 

“It was at its annual meeting in 1921 that the American Bar Association officially began its efforts to regulate access to the legal profession by adopting a resolution that (1) set minimum standards for law admissions, courses of study, faculties, and libraries; (2) established an accrediting program to encourage compliance with these standards; and (3) declared that only lawyers who were graduates of accredited law schools should be allowed to practice law. The purpose of these measures was to improve the quality of the nation’s lawyers. Some commentators who subsequently examined these events, however, have suggested that the members of the association – primarily the more successful, established members of the bar – also hoped to stop the proliferation of lawyers which threatened ‘the income and prestige of their profession.’ ”

 

Notice right there how Fossum reiterates the ABA’s official story, only to then cause doubt as to its truthfulness in the very next sentence by suggesting the real reason instead was the ABA’s systematic discrimination against the country lawyers who had not been indoctrinated by spurious theories of justice when they attended law school in order to protect their own profits and professional “respect.”

So, just how easily were these accreditation standards passed? Well, let’s consider the internal politics of the ABA at that time first:

 

“At the meeting of the association in 1929, members who disapproved of the standards for openly promoting full-time, university-affiliated law schools, to the detriment of part-time law schools, tried unsuccessfully to convince the association to reconsider its accrediting standards and program. Instead, the association reaffirmed its original standards and adopted a new one that specifically prohibited the accreditation of law schools that were run as ‘commercial enterprises’ (i.e., proprietary law schools).”

 

That’s ironic, isn’t it? In the attempt to establish a full-fledged monopoly, the ABA quells internal dissent by claiming they are also trying to clamp down on private schooling! Using a contemporary example, this would be like a statist insisting that the Common Core State Standards Initiative is necessary to curb all those varieties of free-market schooling (because, you know, the No Child Left Behind Act was such a resounding success). Regarding the adoption by the state bar associations of these standards, Fossum says:

 

“The states were slow to incorporate the ABA standards into their bar admission provisions because the ABA had too little influence to gain the necessary support for their adoption. In the 1920s, the organization was a relatively weak one that represented less than 10 percent of the nation’s lawyers. Further, on the matter of legal education, the ABA members could not unite in a single course of action. In comparison, the American Medical Association represented 40 – 50 percent of the nation’s doctors when it began accrediting medical schools in the early 1900s, and it presented a united front in pursuing its goals. By the 1930s, less than 30 years after the AMA had established accrediting standards, 44 states required any ‘applicant for a medical license to be a graduate of a school approved by the American Medical Association.’ It took considerably longer – over 50 years – for the ABA to succeed in getting a comparable number of states to adopt restrictive licensing provisions.”

 

Rather interesting, wouldn’t you say? It wasn’t even so much the profession of being a bar attorney that was despicable at that time, because it was a tiny minority of bar attorneys who sought to establish their monopoly by controlling which law schools were permitted to teach those individuals who wanted to practice law. This hegemonic control of educational standards, instead of a plurality of standards competing with each other in order to satisfy market demand, smacks more of corporatism rather than laissez-faire. Fossum continues:

 

“Nevertheless, as late as 1956 only 18 states required that original applicants for bar admission (i.e., applicants who had not been admitted to the bar of any other state) be graduates of an ABA-accredited law school; 7 other states had practices that in effect limited admission to graduates of ABA-accredited schools. Milton Friedman explained the inability of the ABA to equal the AMA in gaining the support of the states by the fact that many state legislators were graduates of unaccredited law schools…Friedman predicted, however, that as state legislatures became increasingly made up of graduates of accredited schools, they would be more willing to incorporate the ABA standards into bar admission provisions.”

 

Even here, an efficiency expert for Big Government was able to surmise that, given enough time, the state legislatures would be infiltrated by the products of these monopolized law schools. The result of such infiltration was:

 

“Thus, approximately 50 years after commencing efforts to regulate access to the legal profession, the ABA had come close to matching the success of the AMA in obtaining passage of restrictive licensing provisions in the states.” [emphasis added]

 

Ah, so that is what much of this is about – the licensure upon the practice of law. Cui bono, much?

What was Fossum able to determine, if anything at all, about the validity regarding the ABA’s claims that its standards would decrease the incompetency of lawyers? Using the (now old) Standard 202 as her testable variable, Fossum says:

 

“The ABA standards govern those elements of a law school which are considered to determine the quality of its legal education…Standard 202 states that a law school ‘may not be operated for private profit’ (i.e. it may not be proprietary). This restriction reflects the belief that the provision of a sound legal education is not compatible with the maximization of profit and therefore that the quality of any proprietary law school must of necessity be low. Since this standard has acted as an absolute bar to accreditation it has never been possible to test the validity of that belief, if Standard 202 has applied, none of the other standards has been considered. This, if a law school is nonproprietary and meets the other ABA standards, the ABA will accredit it. If it meets or even surpasses all the standards regarding faculty, library, and other facilities but is proprietary, the school cannot be accredited.”

 

Besides the fact that this economically bogus, what it reveals is that this tiny minority of bar attorneys espoused virtually the same beliefs as the authoritarian communists. The hatred of bourgeois profit, the phony egalitarianism, and the love of undue government favor all evoke an aristocratic desire for honors that would have been prohibited by the Titles of Nobility Amendment. Fossum said that:

 

“In conclusion, the comparison of unaccredited proprietary and nonproprietary schools revealed that the two types of schools were remarkably similar with respect to administrative policies, admissions politics, education programs, faculty, library, and physical plant. Most differences were noted within each category than between the two categories. When differences on the quality measures were noted between unaccredited nonproprietary and proprietary schools, size and geographical location were more likely to account for differences than was financial structure. The data gathered in this study fail to show persuasively that on the basis of accreditation criteria proprietary schools are inherently inferior to similarly situated nonproprietary schools. In short, the available data do not establish that when assessing the quality of a law school, ABA Standard 202 can fairly serve as a surrogate for the remaining ABA standards.” [emphasis added]

 

At best, according to Fossum, the ABA’s accreditation standards did not improve the competency of new bar attorneys. Why then, I wonder, would the ABA push so hard for these ineffective standards to be adopted by various state bar associations? Fossum explains that:

 

“To the extent, then, that is has been justified as a surrogate for the other standards to facilitate the elimination of a class of law schools that are believed to be inherently defective, Standard 202 has apparently been based on a faulty or at least unproved assumption. In any event, owing to the status of the ABA as a ‘semiofficial agency’ in most states, Standard 202 has had a considerable effect on the structure of legal education as well as on that of the legal profession.”

 

Understandably, she is trying to be objective by also being charitable here, but come on! Does no one see a glaring problem here? Who the hell in their right mind would ever support anything the ABA ever wanted to do again in the future after learning about this notorious disaster? What part of “faulty or at least unproved assumption” does not absolutely reek of corruption? Fossum concludes that:

 

“Like Standard 202, the rest of the ABA standards have been and continue to be officially justified on the grounds that they improve the quality of legal education…[t]hese standards, like Standard 202, have been promoted by the ABA and enforced by the states without any serious attempt to validate them. All the ABA standards should be examined and their supporting assumptions tested.”

 

I guess it wouldn’t hurt to acquire more empirical proof just to be on the safe side, yet, is it really necessary for you to judge whether the ABA’s monopoly on the law is justified? If you remember, Harvey Silverglate claimed that the ABA was an independent bar, and as such, was an indispensably important counterweight to government actions. How “independent” can any bar association be if it enjoys a government granted monopoly on the provision of law schools, and subsequently, a unique advantage in determining how the licensure on the practice of law itself is granted?

Donna Fossum’s Law School Accreditation Standards and the Structure of American Legal Education is a mind-blowing piece that exposes the ABA for what they are: a ruling secular priest-class. Is it any wonder that huge chunks of government employees (such as legislators, judges, and bureaucrats) are as institutionally despotic as they are? Only by decentralizing power through avenues such as the apprenticeship of new lawyers by judges and the private production of legal educational services can any lover of liberty be able to cause serious dents against the statist monopoly upon the law.

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One Response to Law School Accreditaton Standards

  1. Pingback: Suing the Government Does Not Work: Lawsuits Are Not Useful For Securing Your Liberty - Liberty Under Attack

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