A legal conflict of interest

A fascinating post by Ilya Somin at the Volokh Conspiracy, criticizing the ABA certification of law schools.

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Nor is the point purely theoretical. As soon-to-be guest blogger Andrew
Morriss explains in this paper (pp. 4-9), ABA accreditation of law schools emerged in the early twentieth century as a way of eliminating competition from independent law schools and apprenticeship systems. Many if not most ABA accreditation requirements since that time have similar causes.

If viewed as mechanisms for maintaining a cartel system rather than as efforts to advance the public interest, the ABA's most controversial accreditation policies suddenly start to make sense. For example, the ABA's support for methods of affirmative action that admit students most of whom are likely to either drop out of law school or fail the bar obviously serves the economic interests of already practicing lawyers. After all, had those same admissions slots gone to people who are likely to graduate and pass the bar, there would be more competition in the profession. Like David Bernstein, I am not categorically opposed to all forms of affirmative action. But it is striking that the ABA has chosen the form most likely to
advance the interests of its members and least likely to actually help
minority students (not to mention minority consumers of legal services).

I'm not sure I agree with the argument that affirmative action standards help limit the number of lawyers; they may stop a white person from attending a Tier 1 law school, but they could attend a Tier 2 school instead. If affirmative action extends all the way down to Tier 3 (or whatever the lowest tier of law schools is), then you may be bumping slightly better law students, but at the level where legal success is far from secure for anyone.

The Society of Actuaries and Casualty Actuarial Society sponsor a series of examinations for professional accreditation of actuaries, which are widely perceived as ways to limit the number of actuaries and protect existing members. But in this case, they don't dictate college requirements. It is possible to pass these examinations without any educational background at all, though getting a job without a bachelor's degree would be extremely difficult. And what tier of college you did graduate from is of little import; number of examinations passed before employment is much more valuable.