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February 12, 2014

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TWBB

Unfortunately, while she has given the matter a lot of thought, her conclusions are pretty much counterproductive in light of the current law school crisis, though I suspect that may be why she was selected to lead the AALS. Less, not more, regulatory capture of the accreditation process by legal educators is what is needed.

Justin Hansford

I have to vehemently disagree with TWBB. Peer assessment and peer governance, which Areen seems to favor in the SSRN piece cited to above, it one of the few measures that most would agree will help legal education emerge from its so called crisis. Plenty of power hungry university presidents are looking to use the crisis as leverage to help them abolish tenure and further centralize power structures. Peer governance is the only safe harbor from that.

TWBB

The problem with peer governance is the same problem that inflicts most impulses towards self-regulation, and that's regulatory capture. As can still be seen on places like this blog, there has been tremendous resistance for legal reform from law school professors and deans, so it seems counterintuitive to allow these same people to influence what kind of rules they can use when running their schools.

The DOJ consent agreement came about precisely because the ABA accreditation council was using it to safeguard perks and privileges at the expense of the students and the public.

Areen's linked piece goes into great detail about how other academic units are accredited, but if you read her section on why legal educators should get more input into the process, there is a lot of conclusory language but very little cogent argument. For example, this is the totality of her argument that the DOJ consent decree limiting legal educator membership in the accreditation council:

"Although the provisions in the final judgment prohibiting ABA
involvement with salary information were well-tailored to end illegal restraints on competition, the membership-limiting provisions reducing the
participation of legal educators on the Council and its committees were not."

There's no footnote for that statement, and more troubling is while she urges the council to take advantage of the fact that the consent decree expired, she does not seriously address the self-interest problem that so concerned the DOJ.

Instead, she disingenously implies that the requirement that no more than half of the accreditation council's members be law school deans or professors was some arbitrary, tangential addition to the consent decree when it was in fact instituted precisely because the DOJ realized (and by consenting to the decree, the ABA formally admitted) that the council was a victim of regulatory capture and that the accreditation standards it was mandating were in many cases done for the benefit of the faculty at the expense of the students.

Most troubling, considering the detail that comes before on the issue, is the omission of ANY mention of the DOJ sanctioning the ABA in 2006 for violating the agreed limitation on the number of legal educators on the council (among other things). There is no excuse not to include that information, and there is no conclusion to make other than the fact that she intentionally omitted it because it weakened her argument. If this were a brief filed in court there would be ethical issues arising out of this omission. As a journal article it's similarly problematic, and I think shows the value of peer review; in any other field, knowledgeable reviewers would not allow it to be published without that information.

Now all this doesn't make her unqualified to lead the AALS; it's basically an industry lobby for law faculty, so she would seem suited for the position. I do however disagree that she, and now by extension the AALS, should be given much weight when discussing law school reform.

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