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August 14, 2014

What’s next for ABA Standards Review?

by Dan Rodriguez

One suspects that the ABA Council is taking a deep breath, and perhaps also a victory lap, after several years in which it reviewed existing standards and made some meaningful reforms. Attention rightly shifts to the implementation of these reforms and, one hopes, to working constructively with law schools to best manage the burdens (and also the benefits) of these new standards.

But we should not lose sight of the fact that there is much more constructive work to do. The multiyear process just completed was described as a comprehensive one. Yet, the most comprehensive approach to reform would look freshly at all the rules in toto, asking simultaneously the questions: What is the fundamental purpose of law school regulation? How do the standards maintain public confidence in legal education while encouraging law schools to revisit their basic instructional and economic models, in light of the changing landscape for students, faculty, and lawyers? And how can these standards be framed as drivers of innovation and of creative reform, rather than as maintenance of a model of legal education that is coming under challenge, and from many quarters, as ill-suited to the needs, wants, and exigencies of the profession?

Drilling deep into these questions can assist the Council and its many stakeholders in opening the kind of dialogue that promises to lead, albeit not in the next few months or even couple years, to important change.

More specifically, the ABA Council might think in earnest about the following (which is not to say that such thinking has been entirely lacking within leadership of the Council and ABA Section headquarters:
1. What is the right regulatory approach to teaching faculty? The Council punted entirely on the matter of job security, in the face of criticism and worry. But the matter has not dissolved in importance. What role is there for creativity and flexibility in the construction of a teaching faculty (tenured, long-term contract, and adjunct)? How can the best approaches to academic freedom and faculty governance be married to a vision of high-quality, innovative pedagogy?

2. What is the role of technology in the delivery of legal education and of legal services? The ABA has taken some baby steps toward flexibility with its new distance education standards. But there are large issues which loom nearby. The Council could take a leadership role in thinking about this issue not solely or simply as one of regulation of novel behavior and activity among member schools, but of how best to incentivize and create a space for law schools to think differently (and in some cases radically differently) about information delivery. A thoughtful standard on so-called flipped classrooms might be a bite-size place to start.

3. What should the ABA Section’s regulatory role be with respect to non-core JD programs, including LLM, Master degrees, and certificate programs? Hardly any law dean craves traditional regulation in this space. On the other hand, the development of sensible, informed standards for evaluation — and, yes, even for assistance to law schools — would aid confidence among the public and various stakeholders that law schools are thinking through the implications of these novel programs and are serving important professional objectives.

4. How can the standards help law schools advance the cause of breaking down traditional silos between modalities of professional education? In other words, as the law-technology-business interface replaces the traditional dichotomy of “law practice” and “business performance,” can there be accreditation standards that both absorb this multidisciplinarity and also reward collaborative change? One specific recommendation: Permit, and even encourage, more dual degree programs, cross-listed courses, alternative admissions tests and criteria, joint faculty hiring, and various efforts to build bridges between law schools qua law schools and other professional departments, including business, engineering, medicine, and the social sciences.

5. What is the role of these standards in assessing alternative legal education providers? And by “alternative,” I mean to include non-U.S. law schools, undergraduate institutions, paralegal, for-profits . . . that is, the whole gamut of institutions that are not regular law schools. There is a “looking for the keys under the lampshade” quality to the existing standards. A comprehensive review, consistent with Dept of Educ guidelines, might look at how there could be coherent standards of all relevant accreditation standards to ensure that there are good approaches to legal education wherever such education happens.

Many more questions, and other welcome perspectives. But here is a plea for the Council not to take too long a break from their standards review. There is much more work to be done.

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