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The ABA’s Abdication of Responsibility:  Winners (Law Schools and The Bar Cartel) and Losers (Law Students) in the Rule Abandoning the LSAT (and Any Testing Requirement) for Law School Admissions

One reason regulation gets a bad name is because of regulatory hypocrisy. The American Bar Association’s logo banners:“Defending Liberty Pursuing Justice.” I guess you have to ask “for whom?”

The ABA will bring to a full vote in August its proposal—approved by relevant committees of, well, the ABA—to “eliminate the requirement of a ‘valid and reliable test’ as part of a law school’s admissions process.”

I’ve criticized the ABA’s lack of oversight over the law school admission process and law schools before. Just look in this blog’s index under “ABA” or “American Bar Association.” But then the ABA appears to consider action, so I wait and hope. But it always comes out the same. Regulations that might actually rein in abusive law school practices (or improve the admissions process, or tighten admissions, or, well, you name any proposal in the interest of law students) go by the boards, while regulations, like this one, that respond to what law schools want, get adopted.

The regulation finally adopted by ABA committees wasn’t just to allow the GRE to be used alongside or in lieu of the LSAT, it was to say, Oh, who cares about any of it?

Well, law schools care (and the ABA is giving them a win), and prospective law students care (and the ABA is telling them to pound sand, in the guise of opening the process).

The reason to take off testing requirements is simply to respond to a tough market for law schools where a lot of law schools—many of whom probably shouldn’t be in business since what they do is put a lot of people in debt that they’ll never get out of—need bodies in seats to pay their bills. As Vivia Chen says (and her article is well worth reading in full), “why do away with something like the LSAT that tests for logical thinking and critical analysis—the stuff that actually gives you a flavor of what law school entails?...The reason is obvious: Law schools are worried that they won’t have enough warm bodies to fill their seats so they want to make the application easy, breezy and spontaneous. Just what society needs: More people diving heedlessly into the legal profession.”

You might think the new rule will be a win for prospective law students and future lawyers. It’s not. First, because the vast majority of law school applicants will still take a standardized test, and most of those will take the LSAT. There is no requirement for law schools to insist on a standardized test but most can and will insist on one for their applicants.

Second, because the cartel-like nature of bar admissions will continue. State bar associations generally don’t determine bar passage on the basis of a score—not, you get 70%, you pass, for example—but on the basis of how many new lawyers the state bar association wants, to cover retirements, attrition and the like. So some years you need a higher score and some years a lower score will be fine.

The reason for that is simple—it’s to protect current lawyers and make sure they don’t face too much, um, competition. From better lawyers. It’s why someone who passed, say, the Florida bar yesterday is able to practice in Florida whereas someone who has practiced superbly for 30 years elsewhere can’t practice in Florida because they haven’t passed the all-important Florida bar. It has nothing to do with legal ability, and certain state bar associations are pretty up-front about that (at least behind closed doors while crowing publicly about protecting the public). It’s to protect their cartel members. Period.

That won’t change, so there’s no victory for prospective law student here. The number of lawyers will still be determined anti-competitively. Bar associations are a medieval guild and—if it were anyone other than lawyers doing it (maybe doctors, too)—it would violate antitrust laws.

So there’s no victory for prospective law students. But there is a clear defeat. It’s worth something to be able to look at test data to get a decent idea of who your prospective law school classmates will be. The opportunity cost to go to law school is about a quarter of a million dollars, give or take a few bucks, and the thing about investment decisions like that is that you’d like the people you’re tossing money to to be pretty transparent.

What the ABA is about to do is eliminate what transparency there now is. Now law schools will be able to fudge numbers with much wider latitude, giving you the impression that a student body is more accomplished than it actually is. You will be more reliant simply on what law schools tell you, since the LSAT numbers—which weren’t a tremendous help but were some—are now off the boards as a reliable indicator of a student body. If as a law school, I can get 50 people with high scores, and then admit a bunch of other people who have taken no standardized tests, my numbers (and likely my ranking) jump and I can provide applicants with a technically accurate yet utterly false picture of my class. And one thing law schools are really good at is gaming the system. Whatever the high-flown verbiage, this new rule will say simply “Game the system all you want.” Or “Lie all you want while telling the truth.” At the expense of law students, since only law schools can play the game.

This is regulatory capture in its fullest sense—the ABA is doing the bidding of those it is supposed to be regulating while doing nothing—harming, actually—those who are supposed to be the beneficiaries of its regulation.

I guess this is ok for businesses like mine, since what law students will more and more need is guidance to see through the games that law schools will surely play, since the ABA has said happy hunting on law school candidates. But avoiding the enhanced weaponry that the ABA has given law schools shouldn’t be necessary, not for people who can pay my fee, and not for people who can’t. The ABA should do what it says its job is—defend liberty (for everyone) and pursue justice (for everyone) or it should stop saying it’s protecting prospective law students. Or it should change its logo to say “Defending Liberty for Law Schools and Lawyers” and drop the nonsense about justice entirely.

But it won’t do any of that because then its jig would be up. The ABA’s cynical regulatory cleverness is to give lip service to justice and liberty while doing, in the end, no more than protecting its own—law schools and current lawyers. Not for the first time, the ABA should be ashamed. But it isn’t—it will continue to spout self-righteous clap-trap about justice and liberty while doing the opposite.


by Kyle Pasewark at Advise-in Solutions on December 10, 2018.

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