There are many reasons that law schools cost a shit ton of money to attend. Books are expensive and inflation plays a role, but the largest contributing factors are a combination of easy money in the form of federal loans for grad school and high overhead — like paying professors six figures to teach from those pricey books we mentioned earlier. And while I’m usually for whatever cost-saving solutions people proffer to fix the cost of learning crisis, the most recent solution from the FTC doesn’t really seem like it would move the needle much. Reuters has coverage:
The U.S. Federal Trade Commission on Tuesday called the American Bar Association’s accreditation of law schools a “monopoly” that increases the cost of a law degree and limits the supply of new lawyers.
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The FTC said the organization requires law schools to “conform to controversial ideological views prevalent among the legal elitists.” It cited the ABA’s diversity and inclusion rule for schools, which requires law schools to demonstrate their commitment to diversity in recruitment, admissions and programming. The rule has been suspended since February, and the ABA has proposed eliminating it altogether.
First, let’s get in to the FTC’s cost increasing monopoly designation. Is it a monopoly? I mean yeah — it is the only recognized law school accreditation hander-outer, but merely being a monopoly doesn’t justify antitrust intervention. Some monopolies, natural ones for example, are so good at doing what they do that their normal function is actually beneficial to consumer interests. The ABA is a good example — the Department of Education has long recognized the ABA as the national accreditor of law schools, hinging loan eligibility on attending ABA accredited schools. When the ABA lets people know which schools are actually good at getting their students to pass the bar, students are more likely to make better investments and the government is more likely to recoup on the student loan money once the graduate gets that nice Biglaw job. That saves consumers money. Might be a monopoly, but everyone wins; it is a waste of time and resources to go after a model like that.
An issue only arises if the monopoly is operating in ways that are anti-competitive and the reasons the FTC give just don’t get at that. To the argument that the ABA is anti-competitive because it limits the supply of new lawyers, you’ve got the wrong guy. The ABA requires law schools to disclose their sizes, but it does not set minimum or maximum class size — bottlenecks in lawyer output have more to do with how many students law schools admit than it does with the ABA. Blame U.S. News for the fixation on class sizes.
And to the point that the ABA is anti-competitive because it encouraged policies that tend against White male only classes, that’s just good economics! Diversification is just a normal consequence of Capitalism and globalizing markets that benefits consumers. A commitment to diversity has purely economic benefits with more long term value than whatever pennies could be saved by a demographic suggestion.
But more to the point, that rule hasn’t been in effect for nearly a year, and is likely on its way permanently out of the door.
The real explanation for why the FTC would pick now to go after the ABA has nothing to do with its monopoly status and everything to do with the fact that the ABA is a thorn in the side of an administration that likes to punish its political enemies. At the end of the day, what are the “controversial ideological views” the ABA is pushing? A commitment to the rule of law? The idea that the profession is made better by Women, Latinos, Blacks, Asians and everyone else? Antitrust shouldn’t be used as a bludgeon to push right-wing culture war issues.
Using the FTC to attack the ABA is cover to solve a right-wing first mover problem. As it stands Texas, Florida and Tennessee are some of the few states that have made concrete efforts to come up with their own law school accreditation system. Even if they come up with their own individual standards, the lack of reciprocity between their standards and the rest of the union would be a disincentive for other states to move toward adopting their own requirements. Why reinvent the wheel, right? If the FTC smashes it.
The antitrust challenge would risk throwing the working accreditiation system in disarray, pushing states that saw no need to drum up their own system to figure out how they’ll evaluate if their law schools are still in working order. Frankly, the effort that would require seems like it would lead to an increase in costs for law students rather than lowered tuition — it isn’t like this year’s tuition costs were that much lower because of the diversity standard’s moratorium.
FTC Says ABA Is A ‘Law School Accreditation Monopoly’ [Reuters]
Earlier: ABA Diversity And Inclusion Standard Looks Like It’s On Its Last Legs
Florida Still Stumbling Through Trying To Replace ABA Accreditation
Texas Plans To Cut Law School Accreditation Ties With The ABA
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, is interested in critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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