Dave Hoffman writes at Concurring Opinions (emphasis added):
Whither Law School Accreditation?
Over at ToTM, Josh Wright has a post on the ABA's accreditation role. He's responding to David Bernstein's post here. David and Josh both seem to support attempts to strip the ABA of its accreditation role, in whole or part. The disputed provisions are:
Obviously, the group of Deans who wrote this letter aimed it carefully. Indeed, the letter has been read by many folks (Leiter; Manne) as a rather targeted campaign against over-reaching by the ABA into what are seen as institutional prerogatives. But now that I've finally gotten around to reading the letter and the commentary, I simply don't see the limiting principle here. This is about whether the ABA should be permitted mandatory accreditation power, not whether some aspect of that power is efficient or not.
- 205(c): "Except in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure."
- 405(c: Law schools "shall afford full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members."
- 603(d): "Except in extraordinary circumstances, a law library director shall hold a law faculty appointment with security of faculty position." (Comment: " The granting of faculty appointment to the director of the law library under this Standard normally is a tenure or tenure-track appointment.)"
Indeed, the arguments in the letter work as well (if not better!) against standard 405(b): "The law school shall have an established and announced policy with respect to academic freedom and tenure . . . "? I imagine that if you were to ask many Deans who should decide if their institution ought to have a tenure system, they'd say: "me." When pushed, they'd add "and the folks who pay the lighting bills too." And their arguments (flexibility; efficiency; cost) would be precisely the same as in the clinician context.
Thus, Geoff's Manne's argument here seems somewhat wrong to me. This could very well be the thin end of the wedge, directed at those segments of the law school community least able to speak up for themselves. (Yes, Niemoller's poem is an obvious link, although I think it is crass in this context. )...
This post isn't going to be a defense of tenure. But I thought it might be worth it to stop for just a moment to consider the arguments for why have an ABA accreditation process at all. Tenure is part of what it guarantees the world. It also gives us clinical legal education (meaning legal services for the poor, subsidized by law student tuition), law libraries of a certain size, etc.
I don't think it can be denied that the primary economic effect of the process is to raise the cost of legal education and ultimately the cost of legal services. This is a problem because the poor will increasingly be priced out of the market.
But that doesn't end the story. Unregulated market outcomes - what the Law Deans presumably would want - aren't necessarily welfare maximizing. They just often are. So I suppose we have to ask: is there any strong evidence of market failure in the law school industry (inputs & outputs) that would justify continued intervention by the ABA....
In sum, I'm just not convinced by the arguments for continued ABA oversight over the employment and acceptance practices of law schools. But the question is a close one - and for some accreditation practices (like those for the public good like law library) I think the balance favors a continued ABA role.
Is there a case to be made that I haven't considered?