For years, certain critics of the American Bar Association's regulation of U.S. law schools have argued that schools should have the freedom to design their own programs, on their own terms, and let the market decide which models survive. These folks tend to object to things like tenure rules, detailed curricular requirements, and the like.
We could debate whether some of these critiques are fair, but any assessment can't be done in a vaccum. We can't assume that if the ABA deregulates law schools, states won't step in. One of the greatest virtues of having the ABA involved in law school accreditation is that it deters state by state regulation. Local regulation carries additional costs to law schools and create a big hassle for students.
The New York bar is doing us all a favor by foreshadowing this reality. In an updated section 520.3 of Court of Appeals' Rules of the Court for the Admission of Attorneys, New York sets out its own mini-version of law school accreditation rules: any law grad seeking admission to the New York Bar must meet certain requirements that are somewhat different from the ABA considers sufficient for accreditation.
For example, while the ABA is silent about the classroom component of a clinic that counts toward the "in-class" course requirement, the New York Bar requires that: " the course includes adequate classroom meetings or seminars during the same semester in which the clinical work is completed in order to ensure contemporaneous discussion, review and evaluation of the clinical experience " Most law schools have this already - but what if they don't? And is New York planning on sending out accreditation teams to evaluate compliance with the subjective component of the requirement?" (Think: a New York Bar summarian.) Then there is the rule that says you have to complete law school in 60 months - fully two years sooner than required by the ABA.
Then there's the matter of online courses. The ABA is not a big fan and limits them to 12 credits out of the required 83 units. New York limits them to...ZERO. (Strictly speaking, online courses are OK with New York as along as they are sychronous. But that's not a normal online course.)
What's next? Some states might start requiring two professional skill courses or two semesters of ethics. (Wait! Indiana already does the latter.) It's easy to imagine one state after another demanding 3 credit's of [fill in the state] Practice and Procedure.
These would not be impossible hurdles, but they would increase the cost of legal education - by having to advise students on individual state curricular rules and having to provide low-enrollment specialty courses for diverse jurisdictions. content for particular jurisdictions. In some cases, it could even mean changing the substance or method of delivery of particular courses.
The New York story suggests that critics of the current system ought to beware of what they wish for. It will be no great achievement to banish ABA regulations only to have them reappear, in varied and mutated form, in a variety of states.