Law School Foundation & Accreditation over Time

Every time I go to the Wikipedia’s “List of Law Schools in the United States,” (despite its inaccuracies) my eyes move towards the “Year Founded” field. I did this recently and then thought, “Hey, what’s the relationship b’ween foundation and accreditation?” Fortunately, the ABA keeps track of this, and it’s also in the mountain of pdfs the LSAC maintains.

Why should we care about this?

The ABA is often criticized for allowing too many law schools to open, with citation to the sixteen schools that have been at least provisionally accredited in the last decade. Is it just those bad apples, or does the problem go back to the fifty-four that have been accredited since 1970? Earlier?

Here’s a graph.

The average law school was founded in 1917 and was accredited in 1950. The median law school opened in 1909, and the median accreditation year is 1939.

A few notes on what you’re seeing:
(a)    These are all 199 of the currently operating ABA-accredited law schools. No JAG school, online schools, or non-ABA schools are included.
(b)    More importantly, law schools that have closed or merged with others were not counted. If you’re interested in that stuff, see the Wikipedia above. That number of law schools in question is miniscule nonetheless.

Some observations:
(1)    Law schools are very much industrial era institutions. Fifty-four opened in the 27-year period between 1890 and 1916.
(2)    By the time the ABA began accrediting law schools in 1923, 121 of the existing 199 law schools that would eventually join the ABA were operating.
(3)    Law schools did not open during the Civil War or both World Wars (as far as U.S. involvement was concerned), but they’ve opened uninterruptedly since.
(4)    The gap between existence and accreditation stops shrinking after 1970, which is probably due to state bar authorities mandating ABA law degrees for legal competency requirements in the 1950s. It’s only after about 1960 that law schools open and receive accreditation two to three years later.
(5)    So, from the late 1960s until about 1980, the rate of law school establishment increased. From 1967 to 1977, 23 law schools opened. I attribute this to the Higher Education Act’s student lending programs. The post-Carter/Reagan/Volcker era has seen a steady rate of law school foundation that is still not quite as steep as the Gilded Age’s.
(6)    Two law schools received immaculate accreditation: University of Arkansas at Little Rock and Widener Harrisburg were both accredited before they were founded. Most likely this is due to existing part-time satellite programs.
(7)    Two law schools that have been accredited recently have been operating for decades. Faulkner University opened in 1928 but joined the ABA in 2006, and John Marshall Atlanta opened in 1933 but received accreditation in 2005.

Let me be clear here: Not all law schools were created equal. When we find that 61% of the currently accredited law schools existed when the ABA began accrediting them in 1923, those law schools were a world apart from the Super Law Schools of today. Their class sizes would have been much smaller relative to the population. Some law schools would unashamedly provide a more barebones education than others. Jobs would’ve been easier to come by, though we don’t know if law always and everywhere had a high ROI. Tuition would’ve been cheaper but would’ve required savings rather than debt. University of San Diego Professor Maimon Schwartzschild provides the qualitative analysis:

Until the 1970s, it is fair to say, most law schools were not burdened by excessive intellectual ambition. At all but the elite schools the classroom teaching tended to be unimaginatively doctrinal; faculty scholarship was not a priority; there was very little interdisciplinary academic work. Even some of the more prestigious law schools were not necessarily intellectual hotbeds, but there was an enormous gap in terms of scholarly activity and ambition between the best law schools—Harvard, Yale, Chicago, and a very few others—and all the rest.

In the 1970s and ‘80s that began to change. Most university law schools, and even “free-standing” proprietary law schools, began to encourage faculty scholarship, publication, and a more academic style. Academically and intellectually ambitious faculty were hired at law schools where they would have been out of place, to put it gently, in the past.

Add to this U.S. News’s national unitary ranking system in 1987 along with mispauperous bankruptcy laws, and we get the Super Law Schools of today.

However, arguably the problem isn’t just that the ABA is asleep at the switch (notwithstanding its insistence that antitrust regulations tie its hands behind its back). Rather, critics of Christopher Columbus Langdell’s 1870 pedagogy are right: the ABA’s accreditation standards still enable the elite industrial era law school of 1923, and U.S. News encourages it. Thus, it’s inaccurate to say that the law school problem began in the last decade. Sure, the standards must’ve changed in the last ninety years, but most of the law schools were already in existence when all this began.

Frequently predicting that numerous law schools will have to shut down, I think it’s too late. Even if law schools reduce their local impacts by returning to their more varied non-intellectual forms, there simply is not and will not be demand for 45,000 new nationally accredited juris doctors in the legal market for the foreseeable future. No matter what the “I” is, when the “R” in ROI is zero or just less than what one could earn in traditional working class occupations then the system is too big. Though I believe the ABA’s accreditation privileges will be rescinded as the crunch matures, hopefully new lawyer training systems will reflect 21st century practices instead of 19th century ones.

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