As we begin our work (and on a very ambitious timetable), how we best frame the issues is critical. Is this about improving the teaching and training of future lawyers? What is the fundamental role of accreditation in a system of legal education that is largely self-constructed and self-evaluated? What are the objectives of law school and law student regulation? How do accrediting bureaus evaluate their functions and their performance?

Likewise critical is how we go about gathering and analyzing information. We should center this project around data and undertake our efforts around inquiry that is evidence-based and looks at improving outcomes, rather than entrenching existing institutions and traditional modes of thinking. Moreover, we should be broadly inclusive in collecting perspectives and information. While there is lots of expertise within this group, we should be a listening committee. It is important to collect and evaluate the perspectives of myriad stakeholders, many of whom are represented more or less in this collective and others (think of students and also consumers of legal services).

No official organization has assigned any authority to this task force. Our influence goes only so far as our constructive suggestions warrant. For this Substack’s readers, I welcome your advice and input.

First and foremost, the story of purposeful discrimination told in this short letter has some holes in it — or to put the point less provocatively, rests on a few key assumptions and beliefs. Begin with the quotation on p.2 which is presented as a smoking gun. It is from the Admissions director and reads: “I’d prefer not to say that we will have to work harder to enroll a diverse class. This is true, but I don ‘t want folks to think we didn’t work harder if when the class is not as diverse as we would like.“ The DoJ reads this as saying, in essence, “working harder means that we will need to get around SFFA and put a thumb on the scale in favor of minority applicants.” But it is just as plausible to read it as saying that “working harder” refers to other efforts, such as seeking applicants in places (HBCUs, Hispanic-serving institutions, etc) were there are more minoritized individuals, encouraging applicants from diverse groups through various outreach tactics, reaching out to diverse admittees, highlighting their holistic admissions policies and the role of personal statements, which statements may reveal difficulties overcome and special contributions they might make to the Duke Law community. These are all permissible admissions strategies and there is nothing in the “gotcha” quotation that suggests that these are or are not the strategies Duke is pursuing.

So there must be something more by way of a smoking gun than this, no? The DoJ points to parts of emails (with no additional context) by then-Duke law professor Neil Siegel who says in the quoted part that what he likes ”is that the approach leaves lots of room for faculty to emphasize racial/ethnic diversity as well as diversity along other salient dimensions of difference, including nationality, religion, gender, gender identity, sexual orientation, and ideology.” Nothing especially revealing here without any further evidence that the “approach” is one that gives extra points for race. Indeed, the DoJ acknowledges that Duke Law has described its revised admissions policies as “race-neutral.” Where then is the evidence of subterfuge, of Duke Law calling its policies race neutral while really advancing race preferences? Is the Siegel email, combined with the content-less mention that the faculty has praised Duke’s post-SFAA policy, truly evidence that Duke Law is discriminating on the basis of race.

This seems less of a smoking gun than a lot of smoke. But, to be fair to the DoJ’s letter, there is more to the story than that. The apparent fulcrum of the intentional discrimination claim in the first of this two-part letter is that preference “give preference for those applicants who demonstrate that commitment” to “advancing the rule of law and the protection of democratic institutions,” is illegal, insofar as there is a correlation between applicants who meet this criteria and the race of the applicant. The DoJ puts substantial weight on the declaration that this new part of the application will “possibly [help] [Duke’s] diversity goals.” What part of the Court’s decision in SFFA suggests that this is illegal? Nowhere does the Court say that having a goal of a diverse student body is unconstitutional; the issue is how the school goes about achieving its goals. And so it is ambiguous, if not worse than that, to assert as evidence of intentional discrimination that Duke Law hopes that attention to the rule of law and protection of democratic institutions will yield a diverse student body (which, again to take Duke Law’s statements on its own terms, is spoken about as “diversity of perspective and experience”).

Ambiguous as well is the sentence that leads off another paragraph in the letter. Here the DoJ says: “Post-SFFA guidance states that Duke Law ‘may consider applicants’ discussion of how race affected their life, be it through discrimination, inspiration, or otherwise.’” Later in the paragraph, the DoJ says: “Duke Law states that it values ‘students with a wide range of experiences, backgrounds, and interests that may not be directly related to their legal ambitions’ and encourages applicants to ‘highlight different elements’ of themselves.” But what exactly is illegal about this? Purportedly, this is merely a pretext for discriminating on the basis of race. The evidence for this is, again, in statements by Duke Law administrators that the law school cares about the racial diversity of its class. The linchpin sentence in this regard is on p.4: “The record shows those variables were used to advance racial diversity goals and thereby operated as material race-related proxies in admissions outcomes.” But lacking actual evidence that Duke Law intended these applicant statements merely as proxies, it is hard to know how Duke Law should respond, beyond reiterating what they have said (according to statements in fact quoted in the government’s letter) and that is that their policies are “race-neutral.” Curiously, that Duke says, in the whole quotation, it intends in the coming year to the admissions dean outlined an objective for the coming year to “[c]ontinue to focus on developing effective race-neutral admissions policies” would seem to be more exculpatory than inculpatory. Isn’t this a laudable goal? Or a least a perfectly legal one? Might not “effective” in this context mean the promise that Duke Law might in fact achieve its diversity goals without using racial preferences? Effective might have a more sinister meaning, but that alternative meanings are plausible raises the ambiguity of what Duke Law is supposed to say, other than that they are committed to obeying the law while also aiming to achieve diversity objectives. One possible reading of the government’s position is that diversity goals are no longer appropriate. If that is its position, the government ought to be explicit about it, so that Duke could, if it wishes, offer a rebuttal.

It is hard to see a through-line from these quoted Duke statements to a finding that the law school has been purposively skirting the law. Maybe they have been doing so, and presumably a full-blown lawsuit would oblige the plaintiff to come up with better evidence of such machinations — better, that is, than what the DoJ is offering here. It is hard to avoid the surmise that the government fundamentally doesn’t trust Duke Law’s insistence that their policies are race neutral and thus law compliant. They will not believe that Duke endeavors to thread the needle of recruiting a racially diverse class while complying with the Court’s clear holding that discrimination on the basis of race is illegal. But such beliefs need to have a basis in evidence. Just as Duke Law must do more in its respond than to declare “trust us,” the government must do more than to say “we don’t believe you when you say that you are pursuing race neutral strategies.”

But now we come to what the DoJ is really hanging their hat on, and in ways that reveal a different, and perhaps ultimately more vexing, ambiguity. The last two pages of the letter focus on statistical evidence of discrimination. The smoking gun here is the delta between LSAT and admissions scores of African-American and Hispanic applicants on the one hand, and the scores of White and Asian applicants on the other. Here the DoJ declares that “the applicant-level data produced by Duke Law indicate that a black or Hispanic student has a substantially higher likelihood of being offered admission than a white or Asian student with the same academic credentials.” This evidence is without doubt highly relevant to a consideration of discrimination, and the DoJ insists that “[t]he magnitude and durability of these preferences across multiple cycles (including post-SFFA) confirm intentional discrimination.” Duke Law may or may not have something to say about these results, and it is best to the law school to respond in the way it wants.

An ambiguity in this finding remains nonetheless. The assumption undergirding the government’s claim is that Duke Law is admitting students principally on the basis of GPA and test scores. However, we do not know enough from this letter (and certainly I don’t have any inside knowledge) to confirm that this is the case. Like every other law school, Duke speaks in its admissions materials about holistic admissions; it considers grades and test scores, but also considers other factors. Suppose that it goes down the path of discounting the relevance of GPA and LSAT scores, for multiple reasons, but not as an end-run around SFFA. Would this be illegal? Why could not Duke Law or any other law school take a page from the playbook of colleges and universities that have abandoned the SAT or ACT (noting a trend, but an uncertain one, as schools struggle over admissions criteria)? To be sure, the ABA accreditation rules require that students furnish a “valid and reliable admissions test,” but this standard does not tell law schools how exactly to use this test in making admissions decisions.

Let us not be altogether too clever here. The significant difference between the numbers of minoritized applicants and non-minoritized applicants is something for Duke Law to explain, especially in a world in which we are reasonably confident that this and other law schools put enormous weight on these scores in making admissions and financial aid decisions. However, the deep ambiguity revealed by the government’s legal position here is precisely this: Does SFFA essentially require that admissions decisions be principally numbers driven? What would be legally problematic if a law school truly thought that devaluing undergrad grades and test scores would be better for the law school because it might bring it a more diverse class, one that would enable it to achieve diversity goals while also enrolling a class that could bring talents and abilities not easily measured by the traditional means of aggregating GPA and admissions test scores? For all the clarity that SFFA provided as matter of constitutional and statutory law, it leaves ambiguous the legality of outside-the-box admissions strategies. More narrowly, it leaves ambiguous as well a question that matters to the Duke imbroglio and that is whether Duke is in legal jeopardy because of the difference between the minority and non-minority admissions numbers, notwithstanding its commitment to a stated policy that says that it looks at many factors in making admissions decisions.

These ambiguities are problematic, not only for Duke but for law schools looking for guidance in determining what admissions policies are both legal and optimal.

Daniel Thies, the current Chair of the Council, captured the pragmatic point, telling the HoD: “As lawyers, we have all had to tell our clients that the path they want to take, no matter how principled, may be a disaster.” But this plea fell on deaf ears.

If this description of this episode is a bit head-scratching to you, you are not alone. It is highly unlikely that this smoke screen will fool conservatives pushing to disrupt the present system of accreditation by ending the ABA’s hegemony. More to the point, what will be remembered is the ABA’s stubbornness and refusal to adapt to the changing ideological landscape and political pressures. To be fair, the big ABA is not the only recalcitrant institution in this regard. Way back in October of 2024, I suggested that the Council stand pat with a constructive change to the diversity standard. Vocal deans pushed back hard and the Council basically folded. New times have brought new strategies, but I cannot help but think that prudence before the election of Donald Trump, taking account and acknowledgment of the ways in which the way Standard 206 was mis-implemented in the real world of law school accreditation, would have put the ABA’s Council in a better position this fall. But, hey, water is wet, and it is under the bridge in any event.

Despite the yeoman-like efforts of Council members, present and former, allies in the legal education space, and the rare journalist who endeavors to get the story right, virtually no one really, truly gets their head around the fundamental role and authority separation between the big ABA and the Section on Legal Education. Indeed, the peculiar decision of a Congressional committee last month to convene a hearing on accreditation in which the president of the ABA, and not anyone from the Council, appeared underscores the brute fact that the “sins” of the ABA are associated in the minds of lawmakers and others squarely and stickily with the Council. Was, is, and will be, I am fairly confident. And so when the big ABA doubles down, as it just has, on DEI mandates, this surely will not help the cause of reupping the ABA Council as the accreditor.

Alas, the House of Delegates seems to seldom miss an opportunity to miss an opportunity. For years they have dug in with resolutions and statements maintaining barriers to access to justice initiatives, by limiting efforts to relax Rule 5.4 and facilitate legal services by non-barred para-professionals. They have given lip service to innovation, while passing resolutions insisting that lawyers and only lawyers should help underserved individuals in areas such as debt collection, evictions, and family law where lawyers simply cannot meet the need. (If anyone thinks I am mischaracterizing the ill-conceived Resolution 115, read the fine print here, and email me for the backstory). They have pressed for policies that take clear sides in matters about which there is substantial disagreement among the very large population of lawyers (and clients), this all the more striking given the fact that the ABA’s membership is in decline and so it doesn’t really speak clearly for all or even most lawyers (Less than 20% of lawyers are members of the association).

There is perhaps a certain nobility in standing on principle in a world of turbulence. And give credit where credit is due for the ABA speaking loudly and strongly in favor of the rule of law and democracy, where such historic commitments are in peril in our 251st year as a nation. But there is a certain self-destructiveness in their approach to the accreditation matter. Nothing in its most recent gambit corrects that. And it is too bad, and not necessarily because the objective of maintaining the ABA’s role in accreditation is of essential value that ought not be disturbed under any circumstances. Rather, it is too bad because in its too-clever effort at trying to thread a political needle, those rejecting pragmatism are really missing the point that this is all about improving legal education and thinking constructively and self-critically about what is truly in the best interests of our students and the public that they will ultimately serve as they become lawyers, and guardians of the rule of law.

This is what Prof. Adam Sopko (U Colorado) and I argue in this amicus brief submitted yesterday on our behalf to SCOTUS. The summary of the argument is this:

“To preserve the vital interest of comity between the state and federal systems, several limits govern this Court’s authority to review decisions from state courts, including that such decisions be “final judgments.” 28 U.S.C. § 1257(a). States have enjoyed “wide discretion in respect to establishing [their] systems of courts and distributing their jurisdiction.” Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 81 (1930). State courts have developed practices that are in some ways familiar and others entirely foreign to their Article III counterparts. To respect these features of state prerogatives, the Court has long looked to state courts’ understanding of their own procedures and jurisdiction to determine whether a state-court judgment is “final.”

Petitioners’ finality argument relies on viewing the judgment below as a stand-alone proceeding, rather than an interlocutory appeal, and thus controlled by Atlantic Richfield. The Court’s decision there, like some earlier cases, recognized state high court decisions resolving certain independent proceedings as final. Montana’s supervisory writs, like the other extraordinary writs animating these cases, are original remedies issued by supreme courts against inferior tribunals to enjoin ultra vires acts. Petitioners’ argument, then, rests on the premise that Colorado’s Rule 21 creates an original remedy that issues to rein in unlawful judicial acts. That premise is wrong. First, Petitioners overlook the Colorado Supreme Court’s revisions to Rule 21 nearly 30 years ago to implement its supervisory power, a source of authority common to state courts with no federal counterpart. Using this power, the court grants review of novel issues and cases of significant public importance that are not ultra vires. Thus, unlike the formal extraordinary remedies that run against judges, as in Atlantic Richfield, Rule 21 simply allows expedited appellate review. Second, while the Colorado Supreme Court can and does issue extraordinary relief like prohibition and mandamus under Rule 21, it requires specific pleading to do so that Petitioners did not provide. Colo. App. R. 21(e)(1). Instead, Petitioners framed the case as one of significant public importance and one warranting expedited review, not an extraordinary remedy against a judge. Third, Petitioners’ other arguments attempting to frame Rule 21 as an original, standalone proceeding only undermine their theory. They emphasize Rule 21’s automatic stay provision without noting that the state’s rule governing interlocutory appeals uses the same language. And they make much of the use of the “original proceeding” label in Rule 21. But in Colorado, jurisdiction does not fall into the binary their argument requires. The finality inquiry turns on the Colorado Supreme Court’s own understanding of its jurisdiction and procedures. Pet. Br. 18. Viewed on its own terms, the judgment below was not final and thus beyond this Court’s jurisdiction. Deciding this case before a final judgment is not only imprudent, because it requires this Court’s premature intervention, but, more seriously, disruptive of the comity and collaboration that undergirds the final judgment rule’s key federalism values. As with other limits on this Court’s review, a coherent scheme of jurisdiction—including not just “whether” but also “when”—protects the interests of states by assuring that state courts can perform their essential functions under their state constitutions.

This Court has long ensured that state judicial procedures and the overall architecture of state procedure will be vouchsafed as an essential element of our constitutional federalism structure. Here Colorado has a well-established process for judicial decision-making and review, embodied in Rule 21. Asserting jurisdiction now interferes with this authority, with consequences not only for Colorado and its supreme court practice, but for the values of federalism long recognized by this Court.”

Why is this argument important to make and important for the Justices to consider? Because state constitutions are critical instruments in our constitutional system to design and structure our state courts and their procedures. It is fully consistent with our commitment to federal supremacy in matters of federal law to mandate that the Supreme Court fully respect state judicial procedures and to exercise its jurisdictional authority consistent with the constitutional architecture of state processes. This is not a new insight, but one that undergirds the relationship between federal and state courts and, more generally, the system of federalism embodied in our constitutional framework.

As to the obstacles, one key impediment is the current regulatory ecosystem. The authors highlight experiments underway in Alaska, Utah, and Arizona, but a look at the U.S. map tells me that these are three out of fifty states, and fairly small ones after all. True, we see a few more states steadily removing some of the barriers to allow non-lawyer para-professionals to provide direct legal services or, to take the more modest approach reflected in Alaska’s scheme (presently being considered by California, importantly), legal work under the supervision of lawyers. But, boy oh boy, we have a loooong way to go to see a sea change of the sort that health care has experienced in the last few decades. Lawyers remain a formidable interest group, protectionist on their worse days and overly cautious on most days. The ecosystem of legal services is slow to change; and the persistent commitment to self-regulation (under the “inherent powers” doctrine) presents some sturdy obstacles to the kind of omnibus, cross-state reform that would truly open up the marketplace to new service providers. It is no flaw in the Testy-Chapman essay to say that they don’t discuss the regulatory ecosystem and these serious obstacles in any real depth; but any analysis, polemical or otherwise, that connects the dots between the A2J gap and the salutary effects of widening the field to non-lawyer professionals needs to temper optimism with realism, and prepare us to the continuing battles between We the People and They the Lawyers.

What this essay rightly highlights is how law schools can be part of these efforts at access-widening. Historically, law schools have been almost entirely in the business of training future lawyers. The JD is at the core of the educational and business model; other programs, such as LLM or SJD degrees, supplement the core, but they exist alongside the fundamental mission. Of late, many law schools have developed “master degree” programs, some more ambitious than others. These programs aim to educate interested individuals in law. There are basically two models of such programs, and they have now reached a level of maturity where we can see more clearly the two models and, further, better evaluate the ROI of these models against a discernible and useful set of criteria and benchmarks. One model views these degrees as more or less democratizing the study of law. Principally, the law schools use excess capacity in their normal classes to bring in folks interested in legal study and willing to fork over dollars for that enterprise. Whether and to what extent there are measurably valuable employment outcomes for these graduates remains elusive; but impacting their professional goals is not the real ambition (which, to be clear, is not just another way of saying that law schools don’t care about the future of these students); nor is the ambition to change legal practice or the landscape of A2J in any serious way. Indeed, it could not truly be the goal of such programs, because the student body is simply too eclectic and the curriculum ultimately too generic to ground ambitions to change masters’ graduates career trajectory or change the world.

The second model ties the degree (including its pattern of student recruitment and its curriculum) to specific professional agendas. I won’t speak of all or most programs here, but I will say a word about the program I know best, and helped develop when I was dean of the law school, and that is the MSL program at Northwestern Pritzker School of Law. Here we bring in students with STEM backgrounds to learn content at the intersection of law, business, and technology. The medium-size ambition of the program is to equip students with skills that enable them to prosper in existing or new careers, careers where a multidisciplinary and very practical understanding of law and legal institutions benefits from such upskilling. The large ambition is to help bring into the world a cadre of folks who might destabilize the status quo. They would be this next cadre of tiered legal professionals, to borrow the phrase offered by Testy & Chapman in their essay. And the training that the MSL (and similar programs in this model) provides aims to give students an excellent grounding in, inter alia, the provision of legal services to those who are in need of such services, at least for those who would be aided by professionals who bring to the equation not only legal expertise, but expertise in business and technology.

Educating students who come to us with backgrounds in science and technology is the secret sauce in all this. Legal services are being affected greatly by revolutions in technology. Generative AI is one big part of this; likewise, other developments in technology promise to change law and legal services. Not mentioned in the Testy-Chapman essay, but relevant to this discussion, is the possibility that B-to-C technologies might in some cases not only supplement lawyer advice but might actually supplant the lawyer entirely. The goal, after all, is to provide effective, low-cost legal services. If that can be done through, say, a tailored chatbot, that’s a win. However, it might be more balanced to simply say that the use of technology is a part of the tool set of not only credentialed lawyers, but of allied para-professionals who would go into the world and assist needy consumers with legal services, whether through advice, through representation, or some combination of both.

Law schools are at the fulcrum of the legal services ecosystem, in that they are about training folks in how to use their skills and, where appropriate, develop and deploy technology to improve access to justice. Training a new cadre of legal professionals who have preparation and skills in business and technology can be a promising part of this larger reform enterprise. More careful consideration within our law schools about the “why” and the “how” is necessary, indeed overdue.

But let us not lose site of the negative. Two seasoned law school pros, both of whom keep a close watch on accreditation issues, have just observed here and here that the latest Congressional hearing was more or less a farce. Incredibly, no one from the ABA Council was called before the committee, nor were there any legal educators with even a semblance of knowledge of what is going on now. And so, ineptly, the president of the ABA, an organization that is intentionally keep separate from law school accreditation was the principal witness. (I won’t bother to mention the others). The bottom line is that the Congressional committee learned absolutely nothing. More seriously, there doesn’t seem to be the slightest bit of interest either within Congress or the Department of Education of the executive branch to undertake the task of learning anything serious about accreditation or about legal education generally. Soon the DoE is going to do what it is going to do with regard to the institutional mechanism responsible for accreditation. But whatever the result, be it continuing the Section’s authority, subbing in, as Barry Currier has recommended, a different organization for this duty, or leaving a thousand flowers to “bloom” by decomposing accreditation into fifty-nifty authorities, the most dismaying aspect of the present state of affairs is that no one in positions in power seems to have the slightest interest in and commitment to the hard work of examining the relationship between the state and goals of American legal education and the best role of accreditation and oversight. Perhaps nature abhores a vacuum, but we are in a vacuum nonetheless.

Some friendly process recommendations to those in the room where it happens, while those of us who are invested in the subject are ideating, reflecting, discussing, convening and doing the blah, blah, blah that attends to task forces and meetings on the large subject of What is to be Done with Law School Accreditation:

1. Law school accreditation’s future needs a leader or a few leaders in Congress to lead efforts at change. Yes, I am talking to you, Rep. Jamie Raskin, my friend and law school classmate. But I am also talking to others who have an interest and a commitment to getting this right. For chrissakes, Congress is full of lawyers. Are there not a critical mass who might care about legal education’s future? Best to make it a bipartisan effort, and hopefully that is not expecting too much;

2. The DoE should be transparent about how it is seeking and acquiring evidence about how accreditation can be improved. While I am not ready to embrace my friend Barry Currier’s thoughtful suggestion that this should all be taken out of the hands of the ABA, I do think that Secretary McMahon and her team could help move the needle by assembling a group of folks inside and outside of government to advise her department about how best to think about the process of accreditation. If this is happening currently, it is not clear who are the folks involved and how they are going about their business;

3. Back to Congress, they should be engaged in serious and sustained dialogue with the various task forces that are working presently on accreditation. Each of these groups will generate one or more reports. But the time has come for real talk happening between those who will make these ultimate decisions in the coming months and those who have perspectives and, even better, access to data.

Let us all get a grip, me included. This is hardly the most momentous issue of the day. But there are several thousand law students, thousands more prospective law students, a few thousand faculty members, a giant cadre of lawyers and, perhaps most important, the general public whose dependence on the rule of law and the capability and skills of lawyers (including recent graduates) to serve the cause of justice in the U.S., who have an interest and a stake in how law schools operate and how to fulfill their justice missions. Figuring out how best to go about oversight and accreditation is important fulfilling our duties as lawyers and legal educators in a system committed to justice under the Constitution. So, please, no more darts against a dartboard, no more absurd virtue signaling, no more wheel-spinning. As Tony Kushner said in the last line of his extraordinary Angels in America: Let the Great Work Begin.

Two first-day panels tackled the mirror-image questions — what does higher education need the most and what does American need from higher education? The answers to these questions are rather symmetrical. We need reform, sayeth the diverse panelists. Remarkably, a big theme of the commentary from higher ed leaders is that the failings of our institutions are to a large extent self-imposed. We have lost public trust, and the road back is hard to map. We have maintained structures that are well suited to protecting the interests of internal constituencies, especially faculties and, further, have not accounted for the brute fact that the general public doesn’t embrace, or even see, the value added from elite higher ed. Of course they can connect the dots from prestige and selectivity to expanded economic opportunity. But they can also do the simple arithmetic that reveals an oversized attention to the preferences and pivots of a tiny sliver of the educational ecosystem — thinking here of the journalists’ obsession with every move of Harvard, Columbia, Berkeley, etc. — and, with it, the neglect of focus on where the lion’s share of education happens. Can we diagnose our real problems without accounting for the complexity of our modern educational landscape? Sure, Harvard matters. But the attention to Harvard matters is way out of proportion, and, to the point, such preoccupation impedes not only news of innovation happening elsewhere, but also may in fact impede real innovation, as institutional leadership models their decisionmaking on elite playbooks.

The despair among educational leaders about how unsuccessful colleges and universities have been in making the case for residential higher ed was palpable in this group. And palpable as well was the ownership these leaders took of their failures. The matter of tunnel vision and of failing to account for the lack of serious ideological diversity and, alongside it, the temerity to weigh in to public debates in ways inconsistent with commitments to institutional neutrality was a theme that panelists and audience members picked up upon and used to push and propel institutional leadership to better practices, to real reform. The mea culpa reports of Yale, Vanderbilt-Wash U humanities committee, and the Harvard Medical School were very much on the minds of the groups. Self-reflection was resonant and the boldest voices in the room called for efforts that went beyond the confessional, and would point to real reform.

The public was brought up (and leaders occasional let slip the term “consumers”) in their discussions of how to respond to the demands of a democratic citizenry that wants the next generation to be well-educated and well-prepared. A panel entitled “can we prepare citizens to be engaged beyond college?” engaged in a robust discussion of how educational content must be nested in the larger enterprise of preparation for good careers and for the good life. How exactly a comprehensive liberal arts education does that is a question that persists and that requires creative rethinking. One leader remarked, memorably, that a successful liberal arts education requires a faculty that has one foot in the library and the other foot in the streets. Can faculty members manage such a trick? Ought they?

We heard from folks who work squarely in the space that aspires to connect educational institutions with workforce imperatives and their description was sharp and worrisome. They saw as the existential failings of the current model the absence of effective and sufficient opportunities for externships, ones that would enable students to not only refine their skills but actually position themselves for post-graduation employment. Connecting employers with new entrants to the modern workforce was, we heard, the fundamental responsibility of the college, and not something at the end of the transmission belt following the conferral of the diploma. That the best calculations reveal of a gap between what colleges can realistically do in this space and what employers can furnish by way of remunerative opportunities is a serious problem for our students and graduates and, a fortiori, for our institutions looking to thrive or even survive.

I’ll share some thoughts from some of the other discussions, but, for now, a couple summary remarks:

First, higher education lawyers were fairly engaged with the magnitude of the problem. The matter of the demographic cliff loomed large in the discussion, as did the steady “other than college” movement, factors that augur really bad news for a very large number of colleges and universities, as well as challenges for even the relatively well-heeled institutions, those that get most of the ink in higher ed news. That there was one full panel focused on college shuttering was revealing.

Second, a few folks mentioned that colleges & universities disserve the common enterprise of advancing the mission of the larger enterprise with their relentless focus on competition. How can we learn and observe institutional best practices when the agenda is about pushing content and ideas that are styled as entirely bespoke and beneficial to the particular college rather than to the larger educational ecosystem of which this college is a part? To be sure, competition generates incentives to innovate, but it also can impede efforts to scale and to promote the commonweal. We should have heard more of how to square this circle, for, after all, the answer to the question of whether and to what extent higher education is built to last lies in how best to lift all, or at least most, of the boats.

In any event, a few states are deeply worried about these developments and have proposed significant regulation to restrict greatly outside private investment in law firms. Private equity and hedge funds are the target of this legislation, and the stated reasons are (as with the classic arguments for the maintenance of Rule 5.4) that such investments threaten the independence of legal judgment and the fiduciary duties of lawyers to clients. Why now? Largely because of the expanded use of MSOs and the credible view that such arrangements include incentives and opportunities to raise external money for law firms.

There is much to say about the merits of Rule 5.4 and the persistence of that this rule in the face of law firm financial pressures and, as well, concerns about regulatory impediments that contribute to the access to justice crisis. The ABA has been adamant about maintaining this rule, even though many other countries do not similarly restrict law firms and, critically, a couple of states — Arizona and Utah — have recently been experimenting with alternative business structures that are inconsistent with 5.4. But my focus here is not on this important debate about the virtues of vices of this regulatory edifice, but on some of the interesting state constitutional issues that this proposed legislation from Illinois, California, Colorado, and maybe other states raises.

Lawyer ethics rules have traditionally been developed and codified by the actions of state courts. The state supreme courts act under the authority of what is called “inherent powers,” a principle that are its core reflects the prerogatives and obligations of courts to deal with matters pertaining to lawyers as officers of the court. These inherent powers include myriad elements of legal services regulation and also the organization and functions of the state courts, but they have long included matters of lawyer qualifications and, as well, lawyer ethics. The history of the inherent powers doctrine is at once opaque and under theorized. It comes to modern times from the deeply embedded idea that all things pertaining to lawyers and legal practice derive from the essential obligations of the courts to ensure that the justice system operates successfully and consistent with the rule of law. As a practical matter, inherent powers doctrine not only undergirds the broad powers courts have to configure the rules of, inter alia, lawyers’ professional responsibilities, but also protects the judiciary’s powers from intrusions from non-judicial institutions including the legislature.

Pause for a moment to consider how consequential is this idea. State regulation is by and large organized under the rubric of the states’ police power, a topic I have explored in considerable depth in a recent book, Good Governing: The Police Power in the American States (Cambridge U. Press 2024). This power is a legislative power, grounded in state constitutions, whether explicitly or implicitly as a foundational aspect of state constitutionalism in the United States. But the inherent powers doctrine effectively hives off regulatory matters pertaining to lawyers and the justice system, and allocates all key powers to the judiciary. Furthermore, it creates a bulwark between what would otherwise be the prerogative of legislatures to act, so long as consistent with the state and federal constitutions, to regulate legal services in order to protect the public health, safety, and general welfare of the state’s people and the discretion of the judiciary to make decisions involving lawyers, based upon criteria that they develop in their own discretion. To be sure, inherent powers flow from the state constitution and are not necessarily unlimited. And yet these limits cannot be set by ordinary legislative action, but only by the delineation of constitutional responsibilities, responsibilities whose content and definition will usually be adjudicated by judges.

This discussion has proceeded largely on the basis of first principles, and a deeper analysis of inherent powers doctrine would consider state constitutional law cases that have involved assertions of and challenges to these powers. But it is critical to note that the “bulkwark” idea, one that is best viewed as an element of the state’s separation of powers, is well embodied in state constitutional law. Indeed, it is no coincidence that state legislation dealing with legal services remains rare; and legislation that deals with the content of lawyer ethics is rarer still. (The most common of such statutes are those dealing with lawyer solicitation and unauthorized practice of law, neither of which are about legal ethics and conflicts as such).

So where does this leave the current crop of legislation that deals with nonlawyer investment in law firms? On shaky constitutional grounds, I would suggest. State ethics rules that basically codify Rule 5.4 might or might take care of the situation of MSO engagement with law firms. Certainly the impetus behind this proposed legislation suggests that current ethics rules are lacking in this respect. But if and insofar as the state judiciary is unwilling to expand measurably the scope of 5.4 to include activities of MSOs, this may leave this anti-MSO legislation in some serious constitutional peril.

To come at this issue from a different direction, it might be precisely this burgeoning legislative movement (whether wise or unwise, and I confess that I tend to think the latter) that puts pressure on state courts to rethink their classic commitment to the inherent powers doctrine, as it pertains to regulatory innovations such as these. Exactly how they might do so, under existing doctrine and with an eye toward the trend of creative, modern approaches to legal services regulation — what I have called “Nextgen bar regulation” — is an important question, but one beyond this particular post. More on that later. For now, it is enough to note that the Illinois, Colorado, and California are picking at a state constitutional hornet’s nest.

First takeaway is about the merits: The report examines in deep detail the incredible echo chambers that plague scholarly inquiry in a wide range of important fields, including, inter alia, English, History, and Philosophy. The stories about exclusionary practices in departments and journals are unnerving; and certainly the report authors come with receipts. The concerns about the lack of ideological diversity is not, on its face, a new story, but the through-line in this report is from a strongly slated group of established academics, empowered actively and/or passively by senior colleagues and department leaders to decisions that stymie the objectivity pursuit of knowledge and undermine the larger objectives of the university as a place for rigorous examination of facts and the development of research that aspires to truth. To this reader at least, the report was scrupulously careful not to impugn professors who are staunch liberals and avowed activists, but has as its target decisionmaking that is not truth-seeking, and not fundamentally fair to those of heterodox views.

Notably, the report objects at various junctures to the current Right-wing war on universities, and is brave in naming names. It is only if the report is taken wholly out of context that one could draw the conclusion that the problems in academic humanities warrants threats to academic freedom and to the essential prerogative of university faculty and leadership to tackle their own festering problems without the need for purposive grand-standing by conservatives who do not share the values of the modern university and would blow up the whole enterprise.

So one takeaway, and perhaps the most ordinary one is that this report is really valuable as a fair-minded assessment, pointing to some good ideas for reform, and for that reason alone, is should be required reading for those who care about the present and future of academic research.

Second, reading this report through the lens of a legal academic, I can recognize some of the same unfortunate practices in our field. The lack of viewpoint diversity is a problem in our field. This results in exclusions of different opinions and perspectives; and also undermines the truth-seeking functions of academic research in and around the areas of law. To be sure, the issues can be different that in other fields, given that much of work can be described as advocacy work, at least at some level of generality. Urging courts to take one or another path draws on not only analysis that can be subject to more objective criteria, and so is about fact-finding and the pursuit of truth, but also conspicuous is the (informed) opinions of the authors, and, yes, their normative priors. But there is still a fundamental problem if scholarly inquiry that draws upon perspectives and methods that are unconventional or popular is not only disfavored, but crowded out of the conversation. While this report doesn’t touch academic law, I couldn’t help in reading this report to want one or more blue ribbon committees charged with the task of investigating practices in academic law. I suspect that such reports would generate valuable conversation and would, one hopes, move the needle, a needle currently stuck in the groove marked by a combination of complacency among those are comfortable with the status quo and those who relentlessly attack law schools for being too progressive and would prefer academia’s flaws to be adjudicated in the federal courts and before receptive trustees, and perhaps ultimately in blue and purple state legislatures.

A fresh look at academic law is important for a particular reason as well: We are teaching and training the next generation of lawyers, and future lawyers need to be exposed to an eclectic and diverse set of viewpoints and perspectives, this in the classroom, in practice settings, and in scholarly venues. Viewpoint diversity is important throughout the wider academic world; but it is arguably essential in law schools, where the absence of viewpoint diversity and, worse yet, the purposive exclusion of alternative, unpopular views would result in serious deficits in the education that lawyers need to practice and lead in a world that requires full understanding of multiple views and the ability to influence judges, legislators, and administrators (here speaking principally of litigation and advocacy work) who hold different views and opinions.

A final takeaway: It is quite interesting that this report comes to the marketplace of ideas as a result of the agenda of two prominent college presidents. Moreover, these are not any two presidents, but, in Martin and Diermeier, two who have been associated with a more critical perspective on contemporary university ideologies and practices and, largely for that reason, have been seen as more tolerant of some of the Trump administration’s attacks on universities. I am skeptical of the narrative that either of these presidents are MAGA-friendly in some way. Indeed, both have spoken up on behalf of the integrity of universities in the face of external threats and, further, are strong voices for both institutional neutrality and academic freedom. Nonetheless, that the basic fact that these two leaders are the ones responsible for sending this report out with their blessing will be eyebrow-raising, at least in the inside baseball world of academia. It will be interesting to see whether other university leaders will hop on board this nascent movement — I’ll call it a movement that champions deep institutional self-reflection about the problem with modern humanities — and undertakes strategies of change. I hope that this happens, but this hope is accompanied by an appreciation of the complex character of university decisionmaking and internal faculty politics.

Those of us in the cognoscenti also recognize that the appeal of independent state constitutional interpretation often tracks partisan political efforts. In the latter part of the 20th century and into our new century, independent interpretation has often invoked to protect individual rights, especially free speech and equality The protection of same sex marriage, for example, began with some progressive state supreme courts, as did the later the efforts to protect property rights after Kelo. The current turn toward state constitutional law owes much to the Supreme Court’s decision in Dobbs. After this decision, left-leaning organizations such as the Brennan Center have pushed hard the narrative that state courts could and should use their discretion to protect significant individual rights despite the federal courts’ conservative retrenchment.

There is nothing remarkable about this nexus between legal strategy and constitutional theory. Old timers like me can nonetheless smirk at least at the rediscovery of state constitutional law and independent interpretation by liberal legal scholars and lawyers who are working hard to press state courts to employ their power to advance rights-forward views of state constitutionalism in order to combat federal neglect. And, to be sure, conservative scholars and lawyers have a playbook that would deploy state constitutional interpretation to ensure the establishment and maintenance of conservative results through independent approaches to reading and applying their Red state constitutions.

The pearl-clutching of Virginia (and other) Democrats seems to me another matter entirely, or least a more transparent effort to yoke theory to a certain version of constitutional hardball. Last week the Virginia supreme court issued a 4-3 ruling in which they interpreted “elections” to require something mor than the eleventh-hour enactment by the legislature of a redrawn Congressional map. Let me say first that I am not convinced by the majority’s arguments and so I think the case wrongly decided. The dissent raises a number of, to me, strong arguments based upon the Virginia Constitution’s text and some residue of common sense interpretation and the court majority’s response seem rather weak at parts. Beyond that, I cannot and will not say anything about the partisan motivations of the four in the majority, nor of the three in dissent. The opinion, at bottom, is within the boundaries of reasonable constitutional argument, and in some existential sense is a fairly workmanlike, and at times even boring, exegesis on the meaning of elections under the Virginia Constitution. Importantly as a matter of judicial federalism, there is nothing in the supreme court’s opinion that ensures that such a reading would be or will be compelling to other states that will consider similar redistricting shenanigans before the next Census is completed. This is, in the end, an example of independent state constitutional interpretation, meaningful for Virginia and only for Virginia.

Yet of course this decision has enormously important political effects. Therefore, Democrats have raced to the Supreme Court in an effort to get SCOTUS to overturn this effort. The arguments are wholly implausible, and it is hard not to see the Commonwealth’s efforts as anything other than a hail mary, hoping that the football will bounce around barely cogent legal arguments until it might fall haphazardly into the hands of a majority of the justices. The principal argument rests on a version of the so-called independent state legislature theory that was decisively rejected in Moore v. Harper. The sliver of hope reflected in the Court’s comment there that some federal constitutional protection is available when the state court has “arrogated judicial power” to itself is surely extinguished here, where the state court has engaged in normal (even if to many of us, including the dissenters, as unpersuasive) constitutional reasoning. Not to put too fine a point on it, but accepting the Commonwealth’s argument essentially eviscerates independent state constitutional interpretation, as it subjects state courts to the judgment of federal courts on matters that are entirely the province of state law. Or, to put this issue somewhat more charitably, it widens beyond sensible reason this ostensible exception to the foundational idea that federal courts will not subject state courts to second guessing when the fulcrum of the issue is the state constitution.

To be sure, Michigan v. Long introduces some potential ambiguity to this matter. Therein the Court held that if the state court is basing its decision on what is really federal law, then they can’t hide under the cloak of independent interpretation, but should be subject to the federal courts’ surely superior view of what federal law requires. Cleverly, the Commonwealth looks to Long in their SCOTUS appeal, arguing that the Virginia supreme court based its decision on an erroneous reading of federal law. This post is long enough already, so I will leave the reader to read the court’s lengthy opinion on her own, to see whether she agrees with my assessment that this argument is risible. The supreme court clearly bases its decision on its interpretation of what it believes the Constitution of Virginia demands. Michigan v. Long ultimately provides no support for the state’s argument, and is bound to fail.

So much for the Commonwealth’s hail mary. Lawyers gotta lawyer, and there is nothing especially unethical nor profoundly hypocritical in the state’s attempt to seek relief (throw itself at the mercy?) of the Court at this last proverbial minute. The other effort, however, is a bridge too far. Indeed, if the New York Times hadn’t reported this effort, I wouldn’t have believed it. Apparently a critical mass of Democratic operatives are pushing to have the supreme court upended by imposing retroactive age limits on the justices, the result of which is that the justices in the majority would be bounced from office and immediately replaced by enough justices to reach a quorum and, more to the point, justices who could be depended upon to quickly reverse course and uphold the legislature’s map.

This will go nowhere, it almost goes without saying. But let me suggest that this version of constitutional hardball is especially unattractive, precisely because it goes to the heart of what the strange bedfellows of liberals and conservatives — covering a spectrum from Justice Brennan to Chief Judge Jeff Sutton, and many others in between — have been advocating more or less consistently for now nearly a half century, and that is the virtue and value of a truly independent approach to state constitutional interpretation. Given the smaller scale of states in our overall polity, it is naturally convenient for hardcore partisans playing this sort of hardball to manipulate state political processes to accomplish nakedly political aims. That my post focuses on Democratic strategies in Purple State Virgnia shouldn’t blind us to the fierce efforts of MAGA Republicans to likewise weaponize various political and legal arguments to capture the apparatus of their states in order to advance raw partisan agendas.

That it is happening all over is regrettable. But let me say that the reason it is regrettable is not because it disturbs the pristine character of state constitutionalism and our judicial federalism. Let me not clutch my own pearls here. Rather, the reason is it disturbs an equilibrium (political + legal) that has reflected the common agenda and objectives of most parts of our political ecosystem for a long while now and, with it, has strengthened federalism and the comparative advantage of state constitutionalism and state constitutional jurisprudence in a time in which the turbulence of national politics has threatened the values of federalism that is reflected in our still durable and still potent constitutional order. Independent state constitutional interpretivists need real, not fair weather, friends.

Conventional wisdom among those (myself included) who have been strongly critical of the ABA’s accreditation performance is that many of the problems originate from within the ABA Council and management. To be sure, the Council is a “they” not an “it,” and turns over frequently (as does management, albeit less frequently), and so any brickbats directed at the law school accreditors must acknowledge that there has been a diversity of voices and viewpoints over time and not every single person (volunteer or employee) should be viewed as an opponent of change. In fact, and without naming names, I can easily think of folks I know very well who have been highly skeptical about the ABA’s performance over many decades and have worked hard within the system to drive the Council toward real reform.

And yet with these caveats out of the way, we return to the common view that the ABA accreditation team has been neglectful of external pressures to change their ways, and in some cases has double-downed on standards and approaches that are anachronistic and unimaginative — this well before they become politically toxic, as is the story of what will someday come to be called the Trump years.

Let me suggest a different group who bears some responsibility for the glacial pace of change, and that is the legal academy itself. The academy, by which I mean law school leaders and also invested, attentive law professors has, by its own deep conservativism, excessive caution, and lassitude, failed to construct models of and practices in legal education that are adaptive to contemporary conditions and circumstances. In the process, they have perhaps failed to develop administrative foundations and mechanisms that might have significantly deflect attention from accreditors on the lookout for educational deficiencies. Moreover, some of these failures have left law schools especially vulnerable to external critics, especially from the Right currently, searching for reasons to press and sometimes even bully law schools to reconfigure their agendas. In short, law schools are complicit in sowing some of the seeds that is damaging the edifice of accreditation. (And, to come early to one part of the punchline, it is possible, if not plausible, to imagine that these same law schools could be allies in the effort to maintain some decently robust, comprehensive, national scheme of accreditation).

Here are a few scattered examples of this problematic alignment of interest and incentives. Readers may have others (and of course may see one or more of these as inapposite)

Costs

Law school tuition has ballooned over the past many decades. This has been true in private and public schools alike and, while there are outliers (typically public schools in relatively low-cost-of-living states), law schools in the aggregate by exercised their discretion to ratchet up tuition to extraordinary levels. While law school enrollment on the whole has been fairly inelastic, the burdens on young lawyers have been substantial, with aggregate student debt skyrocketing and, with it, impacts on the welfare of generations of law graduates.

Debate has long been raging on a matter that ultimately seems rather impervious to certain answers or even to serious empirical analysis, and that is whether these tuition increases are the result of higher educational costs that, in some measure, are driven by accreditation standards and other external influences or whether greater tuition revenue has given the space to law schools to increase their costs — in particular, the fixed costs associated with faculty, as well as bricks and mortar and expanded curricular offerings. We don’t know for sure, and law schools are not telling. Still and all, we do know that some of the tuition hikes has brought in revenue from students paying sticker price in order to subsidize other students who are especially craved by law schools looking to increase their credentials. And we can allow for the possibility that some law schools are using these cross-subsidies in order to support students in financial need. (Being equivocal here reflects my skepticism, widely shared, that need is nearly as much a driver for tuition spike as increased discount rates in order to chase higher score students in the fierce competition among law schools for the “best and brightest”).

Whether and to what extent this pedal-to-the-metal strategy will be sustainable in the long run, especially given the looming student loan caps, remains to be seen. But unquestionably it has become routine over time, and it has proved fairly resilient to major change, either through applicants voting with their feet to move to lower cost law schools or to avoid law school altogether, or through external pressures — at least until the enactment of loan camps in the Big Beautiful Bill. Looking backward, it is striking that law schools did not, on the whole, make responsible, strategic adjustments in their fiscal structures so as to limit what has been unquestionably deleterious outcomes for indebted students and alumni and, further, to stave out political pressures that would augur significant impact on law schools’ bottom line. The impact of the anti-law school (“scamblog”) movement of a decade or so back was ultimately rather modest. Tuition continues to rise and law school enrollment has remained relatively stable. To be sure, the overall JD population is a consequence of the applicant pool annually and over time. However, law schools have been perfectly free to decrease the size of their classes and adjust their cost structure, in order to account for, say, a changing job market, the financial welfare of their students and graduates, and other considerations that are affected by size. Bottom line: Law schools have charged more and they haven’t adjusted the sizes of their classes to any meaningful extent, with a few exceptions and leaving aside those schools who simply came up short in the enrollment race for one or a few years. It you brought someone down from Mars and tried to explain the choices of law schools over the last, say, forty years, it would be rather hard to explain.

How does this relate to the general subject of this post, that is, with the present predicament of accreditation? Law schools might have worried greatly (and not merely griped on occasion) about accreditation rules that imposed high costs on their students if they thought that this would, as we could expect, create a spiral in which they would need to enroll a large number of students to ensure that these costs would be met. No serious look at the economics of legal education would make a convincing case that the marginal cost of educating the additional law student is equal to the marginal revenue generated by that student. Think of such big ticket items as tenure-stream faculty, and the baked in costs of not only salaries (about which, to be clear, the ABA standards are agnostic), but research support that enables faculty to do scholarship and resources that enable clinical faculty to implement experiential learning. Not to mention the library and . . . you get the point. Accreditation rules impose constraints on law schools in the form of costs. Law schools that might have wanted to run a law school with, say, a student body a third of the size and with modalities of instruction that would yield a more efficient, and also financially less burdensome, program would be hard-pressed to do that given accreditation rules. But lest we see the ABA as the big bad wolf in this story, let’s acknowledge that law schools have enjoyed the freedom that comes with bringing in boatloads of revenue by maintaining large class sizes, charging sky-right rates of tuition, and putting this revenue to use in an arms race for ever-better students, the most attractive faculty, and other good things that the “top” law schools enjoy. It is perhaps only a bit of an exaggeration to say that the cost drivers reflected in accreditation standards are not so inconvenient for law schools dead set on pursuing their traditional strategies of “drill baby drill.”

Learning infrastructure and the exceptionalist illusion

Law schools have long thrived on pursuing, and successfully advocated for, two big initiatives with respect to the faculty (and frequently also administrators): One is that the law school requires full-time faculty with appropriate job security and the other is that whatever economies of scale a department embedded in a general university might yield, legal education is sufficiently unique and special that they really need to be permitted resources that enable them to carry out their distinct educational programs and priorities as they best see fit. The law school accreditors have worked hand in glove with law schools on such advocacy. The ABA standards are chock filled with requirements that foreground the distinct nature of legal education, and they are scrupulously configured to impose conditions on law schools that operate within universities — which include, after all, the vast majority of existing law schools. It is the rare dean in my experience that pays any serious attention to regional accreditation requirements that apply to the university as a whole. Deans, as well as their provosts and presidents, well understand that the ABA is the relevant fulcrum of program mandates. And the standards have long been organized around the principle that legal education necessitates an exceptionalist scheme and structure.

This marriage of convenience is often inconvenient for the consumers of legal education, not only because of the difficult matters of high costs described above, but also because these special mandates impose redundancies that are often wasteful and sometimes problematic when considered in a university environment that strikes for general success and economies of scale. Among the examples that come to mind are separate records management offices and systems, psychological/counseling services, information technology (including enterprise software systems and such). In an age of AI, we often see students entering from universities where they have been exposed to certain AI products and policies to find law schools having adopted what vendors insist are appropriately bespoke services that are tailored to legal education as such. Maybe this is just as it should be. But note that the accreditation structure does at least nudge, if not shove, law schools toward developing pedagogical and support systems that are seen as appropriate to law.

When the scaffold of law school accreditation becomes shaky, as it has presently become, it becomes unclear whether there exists a safety net of appropriate consumer protection regulation.

Transparency

One of the Achilles’ heels of modern legal education has been the disincentives toward transparency. Law school leaders typically disclose only what they are forced to disclose. Most disclosure requirements emerge from ABA standards; some from US News pursuant to their rankings (although there is much overlap between ABA & USN); and the remainder are made up of university-wide accreditation requirements, and, in bad times, requirements that come from litigation or are compelled by state and local authorities. Competition among law schools creates what is essentially an iron law of “keep quiet.” Deans are wary of disclosing their strategies, tactics, and experiments; and whatever goes out into the legal education ecosystem as best practices should be viewed as grains of salt and not the whole salt shaker, because some of the best tricks are kept to the law schools themselves.

Law schools could collectively require much more by way of disclosure, through ABA (and other entity’s) accreditation rules. Such disclosures could not only assist the ABA with their consumer protection functions, but, and this is my main point here, help law schools better understand what kinds of practices and strategies are out there in the world, the borrowing of which could improve the performance of law schools. Accreditation history suggests some care in how information is disclosed. More specifically, litigation over the ABA’s role a few decades back resulted in a consent decree that limited the power of the ABA to collect salary data. Whether assembling and disclosing such data would have truly violated federal antitrust laws is a legal question well above my pay grade. However, there are many other elements of law school functions and activities whose disclosure would benefit the commonweal. Nonetheless, law schools are not very transparent and without some meaningful collective action, are rather disincentivized to work with accreditation authorities to change the status quo ante.

An even deeper dive into the nexus between law school decisionmaking and the accreditation system would yield other examples, examples illustrative of my general point that law schools have created some of this hot water that the ABA is presently in. When we view the current work of the Council in rethinking their regulatory standards in the best possible light, we still have reasons to worry that such reforms will not be enough unless schools engage in their own soul-searching and develop a greater appetite for internal reform. While law schools conveniently decry ABA overreach, they, paradoxically, benefit in meaningful ways from the present regulatory structures. For those steeped in the scholarship on regulation, this is not a shocking insight. Regulatory capture and the vicious cycle of regulatory standard-setting and implementation are well-studied phenomena. That institutions of legal education should be susceptible to such incentives and stickiness ought not to be surprising to those with experience and interest in serious reform.

In nearly 50,000 comments submitted in response to the proposed rule, a number of individuals and groups, including state bar associations, insist that the government is acting outside the scope of its constitutional authority in seeking to interfere with state bar regulation. It is not clear that they are right in these claims; but it is not clear that they are wrong.

Why this uncertainty? Why is this a difficult question? One might think that with more than two centuries of experience with deep matters of constitutional federalism, the question of whether and to what extent the federal government can displace state regulation in matters of bar regulation would be rather settled. But settled it is not. As Stanford law professor David Engstrom and I have discussed in a recent chapter to a book entitled Rethinking the Lawyers’ Monopoly, one of the key features of the bar regulation ecosystem (an ecosystem that includes matters ranging from licensing to ethics to the unauthorized practice of law, among other matters) is that is traditionally managed entirely by state government officials and, in particular, state supreme courts. Federal law in this space is rare, and most of it is focused on ethics/professional responsibility rules pertaining to government lawyers, rules that basically supplement what state bar authorities require of lawyers who are licensed to practice in their states. There are other procedural rules dealing with various aspects of practice in federal courts and while such rules are certainly important, they do not disturb the essential hegemony of state supreme courts (and bar authorities to whom the justices have delegated rulemaking and enforcement power) in matters of ethics regulation. State law, not federal law, governs lawyers’ conduct, and that is generally how it has always been.

One key condition on such regulation, to be sure, is that these state-level schemes of regulation cannot interfere with rights guaranteed by the U.S. Constitution, an issue that was central to the Supreme Court’s decision several decades back in New Hampshire v. Piper, wherein the Court struck down a state residency requirement for lawyers on the grounds that this would interfere with the 14th amendment (focusing on the right to travel). Nor will state regulations stand where it would interfere with the so-called dormant commerce clause. But this condition has remained rather abstract, in the absence of major federal court rulings invalidating state bar rules on these grounds — even rules such as restrictions on interstate lawyer mobility or Wisconsin’s unique diploma privilege which, on the face of it, would seem to raise at least plausible dormant commerce clause concerns. Moreover, where the Court has weighed in, usually in dicta, it has opined that states get to make the fundamental choices about how to structure lawyer and legal services regulation in their states. To summarize, state bar regulatory authority must meet constitutional requirements, as must all state-level regulation of course, must these requirements are not all that onerous, and, in any event, most of the myriad rules governing lawyers do not threaten constitutional rules or values.

But what happens when the feds get into the act by doing their own regulating? Does the U.S. Constitution, through the 10th amendment, give the states any sort of safe harbor in constructing and implementing regulation? No blockbuster case has answered this question either way, puzzling as that might seem, given how important is the ecosystem of legal practice, legal ethics, and the national impact of what lawyers do and how they do it.

Prof. Engstrom and I insist in our chapter that the balkanization of state legal services regulation — what we call, with a nod to Justice Hugo Black’s famous phrase, “our bar federalism” — raises some important concerns, especially in an age in which legal practice is increasingly national and even global in scope, in which developments in AI and other technologies are flattening the geographical (among other) differences in how legal services are and ought to be delivered, and, perhaps most critically, where the access to civil justice crisis makes the need for collective national strategies so very urgent. We equivocate in our chapter on the question of whether comprehensive national regulation is the best answer to these problems, recommending more hybrid schemes of regulation that calls upon states and the federal government to work more collaboratively in this space. Likewise, we equivocate on the hard constitutional questions of how much latitude the feds have to interfere with state-level authority.

On this constitutional question, my considered, but still somewhat tentative view (how is that for more equivocation?!) is that the federal government has more authority than it has traditionally exercised to craft and implement regulatory schemes that would apply to lawyers working for the federal government. State bar rules governing legal ethics are more than interstitial to be sure, but are only part of the overall ecosystem, if and insofar as the federal government undertakes their own strategies of regulation and regulatory enforcement.

Many of the bar association comments directed toward this regulation — which, to be clear, I cannot be enthusiastic about, given its motivation and also what its ideologically laden attempt to look hard to solve a problem that does not seem to really exist, or at least is not especially pressing — make claims about the lack of federal authority that are little more than ipse dixit. Urging a greater federal role in situations involving the functions and performance of federal government lawyers are in issue, and where there exists mechanisms in the Department of Justice to examine matters of misconduct seem plausible as a constitutional matter, given the clear interest of the national government in ensuring that government lawyers are acting ethically and, further, are not being subject to a patchwork quilt of state-level regulations. Suppose a state acting under the aegis of its own regulatory rubric insisted that federal government lawyers be disbarred if a federal court had ruled that a matter they have brought was frivolous or because (to take a current hot topic) they filed a brief on behalf of the United States that contained hallucinations? While we might be sympathetic to state decisions to punish these lawyers for their bad behavior, we might also understand why the Department of Justice would be concerned about inequities in enforcement and targeted attacks on lawyers taking positions on behalf of the Administration that were incongruous with state officials’ view of what the rule of law demands and forbids. Politics presents a two-way street after all. We can well imagine Red state officials getting their dander up about Democratic DoJ conduct; and we can also see, as the Trump administration insists is happening now, Blue states having the same essential reaction. At bottom, the federal government’s interest in creating regulatory structures and tactics that push for a more comprehensively uniform scheme is an understandable strategy, and one that makes some sense within the ambit of our constitutional values and our traditions of American federalism.

This is not a knock-down constitutional argument, however; and we should think more about how exactly to ground the federal government’s power in crafting such an approach. Is this within the scope of Congress’s commerce power? Insofar as it deals with lawyers in practice before federal courts, does it derive from some principles embedded in Article III? And, beyond that, does the connection between DoJ decisionmaking and decisionmaking within the state government implicate some of the anticommandeering doctrine that has meaningfully limited the federal government viz. the 10th amendment? If this DoJ proposal goes forward in this form, we can expect to see litigation along these lines. For now, I want to say just this: 1) The move on the part of the federal government to establish some schemes of national lawyer ethics regulations is not a crazy venture, given all the deficits associated with our balkanized (and potentially weaponized) system of bar federalism we have now; and 2) the DoJ effort implicates some difficult constitutional issues, but we should definitely not leap to the conclusion so prominently made by state bar authorities and others in their comments that this is clearly unconstitutional. Hard questions make bad law for sure, but hard questions benefit from being answered, and this hard question is well worth addressing after so long slumbering.

What a number of legal education leaders noted, along with yours truly, is the possibility that such programs contribute to democraticizing legal education and, even more ambitiously, to preparing this new cohort of students for opportunities to actually furnish legal services, albeit only in the still-small number of states that have opened up opportunities through changing, or in the case of Arizona, all but dissolving, unauthorized practice of law (UPL) rules that would otherwise disable this cadre of “non-lawyers” from providing advice or even representation.

Opening up opportunities for para-professionals is potentially a game changer, as it can help tackle the gruesome access to justice crisis, that is, the crisis of over 80% of individuals who cannot realistically access the civil justice system, and so are looking down the barrel of creditors, landlords, better resourced ex or soon-to-be-ex spouses, and others who take part in the litigation system with an enormous advantage. No one thinks that changing UPL rules is a panacea, as the asymmetrical system of justice in the U.S. is a wicked problem with many causes. Nonetheless, many of us believe that such changes would bring real progress. And it would seem that deliberate attention to the connection between these new master’s programs, which frankly are growing like kudzu, and legal services provision is an interesting contemporary development, maybe even a movement. Credit to those law schools that are really starting to figure all this out.

Now what is an enterprising dean to do? The answer is complicated. The bread and butter of our programs and our business model is the training of lawyers. They furnish the lion’s share of revenue, full stop. Moreover, our faculty is configured principally around their distinct skills and commitment to giving students aiming toward a career as lawyers the best preparation for that path. How we best do that is the perennial question. Is our added value of legal educators mainly teaching substantive law? Is it learning hard into experiential learning (which all the workforce implications therein entailed? Is it training students to “think like a lawyer?” All of the above? Most of the above? The debate rages on. But, critically, it is a debate built upon the fundamental assumption that it is the lawyers we are training.

Investing in a serious way in the education of non-lawyers means building something rather different. It means programming, curriculum and the rest, geared toward a fundamentally different audience. Students not aspiring to become lawyers may be equally interested in learning the law, but they want and need different things from the law school in their time here. To be sure, some schools belief that their expectations may not be entirely different. As conversation at this and other similar conferences reveal, some law schools are focused on bringing master’s students into regular law school classes, on the belief that aspiring lawyers and others ought to be exposed to what is essentially the same stuff. This model has economies-of-scale rationales, but the other rationales remain, at least to me, somewhat elusive. Let’s just say that the belief that educating future lawyers alongside non-lawyers is equally beneficial for both cohorts is, um, somewhat undertheorized. (Disclosure: I was instrumental as dean in creating a program at Northwestern that was built on a totally different model, with a program that provided bespoke courses, geared toward educating students who would work at the intersection of law, business, and technology). Leaving to one side logistics, there is a tension between a firm and comprehensive commitment to educating lawyers and experimenting with programs that are designed to educate folks without attorney aspirations in and about law.

Returning to the topic of access to justice, we can see another tension bubbling up, and this one rests on a somewhat futuristic thought experiment. Here it is, put in deliberatively provocative terms: If we in law schools develop programs which train students to become graduates who will provide some modicum of real legal services and thereby respond to the access to justice crisis, are we not creating new professionals who can be expected to compete against our JD graduates for jobs? If master’s programs accelerate in the direction of training students to be skilled legal service providers and, alongside all this, there is a crumbling of the UPL regime which is propped up, after all, by lawyers protecting their turf, then we are doing something in some degree of internal tension: training students to become lawyers in a marketplace that is being impacted by this cadre of non-lawyers who are disrupting that same marketplace.

And so I come to my advice to deans: Lean into that tension; that is to say, lean into the overall project. You may or may not want to create and sustain a master’s program, as this involves variegated considerations that will be unique to each law school. But if you do so, you might want to embrace the enduring project of how best to educate the new generation of lawyers, whose value and essential role in a society committed to the rule of law is essential. At the same time, you also might want to figure out how you can best develop and nurture initiatives that will help train a new generation of folks in law who could help assist individuals who want and need their help. This is a vision of lawyers and nonlawyer para-professionals working alongside one another to advance civil and administrative justice, finding their unique roles and contributions and looking for ways to collaborate, rather than compete. It is an ambitious vision, but a realistic one. After all, we have evidence from states and other countries which have experimented with changes to the hegemonic system of occupational licensing and legal services regulation and the evidence suggests that the sky doesn’t fall, and indeed there are imaginative solutions possible and plausible.

Law schools need to be part of these conversations; and deans of law schools can develop the skills to ideate, but also to communicate to their myriad stakeholders that their law innovation-minded law schools can simultaneously build programs that successfully educate future lawyers, while also building and supporting constructively programs that help close the access to justice gap. In my experience, lawyer alumni are receptive to decanal communications that amplify this vision. To be sure, these programs need not be full-fledged degrees, but maybe more by way of micro-credentialing or perhaps even executive education, or whatever is best suited to law schools’ discrete goals. What these initiatives nonetheless share in common is that they are not merely exposing eager to students to law stuff, but are actually training students who might use what they have learned to serve clients.

Marketed as such, these initiatives can meet a larger objective that is of broad social value, and that is communicating to the world that law schools have a mission that goes beyond training and sending new lawyers into the workforce. That mission is about democraticizing law and decentering law schools from the specific goal of lawyer training, and including as wider goals the task of educating diverse folks from various backgrounds who will learn law — substantive doctrine, legal methodology, legal skills, interdisciplinary knowledge — to fulfill wider social ambitions that benefit from such learning.1 I know many deans who have leaned hard into this ambition, in ways that are distinct and imaginative, and this is a quite admirable project for a world of legal education that needs such imagination.

Opinions from the justices defending and describing MQD suggest that one of the central elements of the favored analysis is the use of this doctrine as a canon of interpretation. For Justice Gorsuch, this canon emerges from the essential structure of Congressional power, the fulcrum of which is the Vesting Clause of Article I. Viewed more globally, as not only Gorsuch, but also Chief Justice Roberts and Justice Kavanaugh have articulated it in different places, the canon is part and parcel of our Constitution’s separation of powers scheme. It is not simply useful as an aid to interpretation, but is constitutionally required. Justice Barrett has made clear in two intriguing concurring opinions that MQD is better understood as no more or less than a rather ordinary canon of interpretation, something borne of “common sense” and embedded in our longstanding commitment to textualism in statutory interpretation.

Whatever can be said on behalf or against Barrett’s effort at refining (and maybe thereby disciplining?) MQD, what her opinions make apparent is that the main event in all this is textualism, and MQD’s allure and also its controversy turns on how deeply committed are the justices and, with their boots on the ground, appellate judges to textualism as the one true method for discerning legislative will. This is true no less for Gorsuch’s grand theory of MQD. Take on face value his casting of the doctrine as “pro-Congress,” as Gorsuch puts it in his concurring opinion in Learning Resources, and see that what is likewise pro-Congress is fidelity to statutory text. Bottom line: If the text alone cannot bear the weight of an interpretation that authorizes agencies or the President to undertake regulatory decisions, then that’s the end of the matter. The requirement of a clear statement means clarity measured solely and inextricably by the text.

Pushing Barrett’s point further than perhaps she would allow, what is common sense about MQD is not so much the way in which the canon is used as a tie-breaker of sorts, but the core case for reading the statute as would a textualist. The statute can given only a meaning that the words will bear. Textualism 101. QED. You don’t really need a muscular canon to figure out what will be that meaning; you just need ordinary interpretation. Indeed, before MQD became all the rage, then-judge Brett Kavanaugh explained in an important Harvard Law Review essay, entitled “Fixing Statutory Interpretation,” that the critical error in modern approaches to delegation issues (focusing in particular on the Chevron doctrine) was the eagerness by judges to find statutes ambiguous when ordinary textualist interpretation would ably shape the statute’s interpretation and give it meaning.

Returning to Gorsuch on MQD, one can believe with him (I don’t, but this is not the post in which to fight this battle) that MQD is sourced in Article I and the separation of powers, but also see that what is undergirding all this is not the argument that the clear statement rule emerges from the Constitution, but the foundational claim that textualism writ large is required by the Constitution. That, of course, is the sine qua non of Justice Scalia’s theory, articulated most fully in his book on this subject and his most important statutory interpretation opinions.

Viewed through this lens, MQD is principally an aid to interpreting statutes where there is ambiguity. And we are reminded by the Chief Justice in Loper Bright that the determination of whether and to what extent the statute is ambiguous will be decided by courts not agencies, and, returning to the point, through textualist methodology.

To be sure, there is a there there in all this MQD debate. After all, the MQD doctrine in its modern version requires this clear statement only in matters of “economic and political significance.” Minor questions don’t require appeal to this doctrine. However, let’s remember that Team MQD still requires textualist interpretation in even those minor questions. We don’t draw the conclusion (Loper Bright teaches us) from the absence of language or legislative history indicating that agencies get to decide what the statute means that courts must then defer to agency interpretations. Rather, courts are obliged to interpret the statute, because that is what courts do and that is what is required by the APA and Marbury v. Madison.

And so the big event is textualism. That is true both before and after Loper Bright; and it is true whatever the courts are to make of MQD. Textualism helps courts to discern what Congress has done or not done with regard to delegating administrative power. And this is true of major and minor questions alike.1

Leaving this particular episode to one side, this predicament raises — as does the omnibus effort at reforming ABA accreditation more generally — the interesting question of exactly are the stakeholders in this reform project? To whom as a practical and as a normative matter ought the ABA Council attend to? Whose voices count?

The accreditation scheme in law (as in other professions) has long been built on the premise that it is the general public that is the prime stakeholder in all this. Occupational licensing and attendant regulation has rested, both at the level of principle and of constitutional power on the part of the regulators, on the idea that this system is necessary in order to protect the public against bad actions that would happen in the absence of ex ante regulation and oversight. So far as regulation of law schools is concerned, there is a discernible interest group whose interests are uniquely implicated by decisions of law schools, and that is the group of current and potential law students. Minimum standards of effective legal education are designed to protect the interests of those who would part with their time and treasure to attend law schools and prepare for post-law school careers in law, mostly as lawyers.

Does this exhaust the category of those who have a stake in successful accreditation? Not necessarily, as experience shows. Law school deans regularly speak up on behalf of law schools in the accreditation process (not to mention their significant role in accreditation as members of the relevant committees and of the Council itself). More often than not, they will speak on behalf of their students and thereby position themselves as the main representatives of their constituents, that is, their students (current and prospective), and much less centrally, the interests of their faculty and perhaps even their alumni. But judging by how deans invest and participate in the regulatory process, it is too pat to see them as merely the mirror of constituent interests. Rather, they often speak more boldly and expansively on behalf of the well-being of legal education in a broader sense. They raise matters that are at least ostensibly connected to the overarching objectives of legal education as such, and not limited to ensuring minimal quality of education. And, importantly, they are engaged by the ABA Council in ways that promote these bigger visions. For example, the references in the “values” document recently put out by the Council as a description of what the current reform project is intended to accomplish speak about such matters as the rule of law and educational innovation (AI, distance ed, etc.). These are ideas connected to the larger question of “how to make legal education better” and we can see through this lens a more eclectic group of stakeholders, certainly including education leaders.

Indeed, this more expansive lens suggests that the stakeholders group might include consumers of legal services, for certainly they have a stake in the ways in which law schools are better at educating future lawyers — better not in the sense that minimal standards of competence suppose, but better in that they will be more effective lawyers (it is presumed by the accreditors) if regulation improves educational quality. To take just one example, efforts to expand the scope of experiential learning and clinics are hard to see as anything but regulations designed to, as advocates of such changes suggest, improve legal education and, perhaps even more than this, to reorient legal education from where it is currently (in the aggregate) to a more practical, less doctrinal/theoretical approach to educating lawyers. Not to fight over whether and to what extent that is a sensible strategy, it is worth noting that such messaging has the second-order effect of creating new stakeholders — legal services’ consumers, but also those involved in doing (or not doing) this work of clinical education.

The external political pressures that have been brought to bear from the Trump administration suggests the emergence of a potent group of new stakeholders. This includes folks who would fight fiercely against what they see as the ideological slant of contemporary accreditors. It doesn’t take much imagination to see that this new stakeholder group is organized around their own ideologies; their efforts cannot avoid the claim that they are basically proposing (insisting?) on the replacement of current ideology with a better one. They may claim a neutral stance, but we ought to see through that.

This discussion of “who are the stakeholders” aims to help unpack the difficult matter of to whom should the Council respond in making and remaking its regulations? Whose views should count? Of course, this should be decided deliberatively by the Council. But here is a suggestion that emerges from this discussion:

The Council should recur to the foundational purposes of accreditation as the Section on Legal Education has historically articulated it, drawing from the roots of occupational licensing & regulation in the U.S. At the core is the idea that certain rules are necessary to ensure the protection of the public. This suggests a quest for minimum standards, produced through a deliberative and evidence-based process, one that draws input from a myriad of sources (think, by analogy, to the principles that undergird notice and comment rulemaking in our system of administrative regulation). Something more than that — say, improving the quality of legal education — may reflect appealing goals, but it requires a big leap to show that these are accreditation-related goals. Pedigreeing deans as privileged stakeholders may make sense, but with the caveat that where deans give their input, it should be input directed toward assisting regulators will fulfilling their mission of accreditation, not simply to advance either their own institutional interests or even directing the Council toward rule reform that enhancing quality as they see it, much pursue external goals (as some saw the diversity rules as doing).

Likewise, external stakeholders such as public officials or ideology-driven groups, should be considered stakeholders only insofar as their interests are tied too to the foundational purposes of accreditation. There are plenty of other venues for deliberating over the best practices for legal education; we can and should have vigorous debates about say, the value of adding clinical credits to the curriculum, of insisting on tenure for law teachers, for requiring some percentage of in-person instruction, etc. And for these conversations, there will be many voices, and many stakeholders. Let me add that this doesn’t suggest that the efforts undertaken by the Trump administration are inappropriate on this measure. There is a way of reading this effort as focusing in earnest on convincing accreditors to, say, abandon the diversity rule because it has no connection to the fundamental mission of accreditation, to the articulation and maintenance of minimal standards of quality. Perhaps they are right, perhaps they are wrong. But the smaller point is that we ought to look carefully at the structure of the argument and also the real reason for this strategy. That will help us understand whether this is a group that is worth listening to, a group that is truly a stakeholder.1

But occupational licensing and accreditation regulation is arguably a different enterprise. Or, to say it differently, if accreditation is an enterprise essentially equivalent to the development and maintenance of best practices, it behooves the Council to articulate why that should be so and, further, to be intentional about whose voices must be heard and whose views matter. IMHO.

There are, however, some trickier areas in which the law school’s accomplishments and ambitions trumpeted by the dean can bump up against matters that are more complicated – not in the sense that audiences will not understand what the dean is getting at, but in the sense that one might see this news as not-so-good news. In a series of posts beginning with this one, I want to say a bit about these dilemmas and how deans might navigate them.

Let me address here the brave new world of AI. In the olden days (by olden, I going back maybe twenty years or so years), many law schools conspicuously championed their efforts to bring technology more squarely into their classes and programs. Deans spoke about the ways in which their law schools were leaning into technology and how new technologies could enrich our curriculum and put us on the cutting, or perhaps even the bleeding, edge of modern legal education. Some especially ambitious law schools created new centers or certificate programs devoted to these tech-focused initiatives; others highlighted faculty hiring and curriculum development, along with outward-facing initiatives that revealed the schools’ appreciation for the fact that technology was impacting legal practice and schools needed to get on board.

Recent advances in artificial intelligence as applied to law have been of the same general character. Schools have looked more closely at potential faculty hires whose understanding of the nature, structure, and parameters of machine-learning, natural language processing, big data, and algorithms would help contribute to the curriculum and the law school’s scholarly reputation, even if there was no pretense to fundamentally reshape how we were educating lawyers and what scholarship was most influential and highest profile.

The rolling out of the first iteration of ChatGPT near the end of 2022 was a big deal, and as this new generative AI tool moved from a curiosity to a tool commonly used, law schools (like other university departments) grappled with questions concerning cheating and other negative impacts on the educational ecosystem. For the next two plus years, as ChatGPT became refined and more powerful, and as the products from other big players (e.g., Microsoft’s Co-Pilot and Google’s Gemini, as well as improvements in the search equipment by Lexis and Westlaw, among others), legal educators have grappled with emerging challenges while also tentatively nudging our faculty in the direction of learning more about generative AI and bringing their knowledge to bear in law school courses. Many faculty members and deans have worried privately and publicly about what the use of these tools would do to the integrity of our teaching and the success of student learning. At the same time, law schools started to describe more boldly how they were getting onto the AI wave (if not, to mix a metaphor, always leaping onto the bandwagon) in order to create meaningful opportunities for their students. Some deans showed their school spirit by more actively cheerleading about AI and what they were doing to improve their school’s teaching. Others were, by their relative quiet, more ambivalent about what they saw and wanted to say about AI’s relevance and its progress in penetrating into the mission of the law school. Faculty views were diverse as faculty views always are, and deans could hardly satisfy everyone, given that views ranged across the spectrum from “this too will pass” to “AI will rock our world.”

Times in the AI world are changing, and fast. The latest iterations of AI are described as “agentic.” Tech companies such as OpenAI and Anthropic are developing tools that are notably autonomous, able to engage in what looks much what we regard as reasoning. They aren’t limited to using LLMs to respond directly to human prompts. Therein lies the essential difference. By contrast to generative AI tools developed and refined over the past few years, agentic AI is capable of carrying out a complex set of tasks through an iterative process that doesn’t necessarily depend on significant human action and interference. One thought leader described to a group of us working on ethical protocols for the use of AI by practicing lawyers that the human-machine interaction should distinguish between the human being in the loop, as traditional versions of LLMs presuppose in order for these tools to be effective, to humans being on the loop. Indeed, the essential utility of the agentic AI tools is that they enable humans to develop a goal and then task the tool with doing the research and also the reasoning to yield outputs that will realize this goal. One technologist has described the agentic AI advantage as being that these bots can engage in “recursive self-improvement.” Whereas generative AI has as the ultimate end product newly discovered content, agentic AI is designed to realize defined goals and to undertake the sequence of tasks necessary (not only research, but also reasoning and analysis). In the legal practice context, it is the difference between a tool that is highly successful at doing legal research and a tool that can undertake a full-throated legal task such as, for example, constructing a non-disclosure agreement that meets all the relevant legal requirements of a particular jurisdiction and accomplishes the objectives set out by the lawyer at the time that her “agent” is tasked with doing this project.

A search from ChatGPT describes this comparison in the form a very simple chart;

Generative AI typically performs one-step transformations:

Prompt → Output

Agentic AI performs multi-step reasoning chains:

Goal → Plan → Actions → Feedback → Revised Plan → Result

So now we come to the dilemma for the modern law dean. Whereas generative AI could be described by its cheerleaders as a mechanism that would improve legal practice and the welfare of law school graduates, by giving them access to tools that would facilitate legal research and drafting, developers and champions of the newest agentic AI models insist that these products now or in the near future will fundamentally replace the need for many lawyers devoted to solving their client’s discrete problems. To be clear, this is not the same as predictions of how so-called Artificial General Intelligence (AGI) will unfold, so to reflect a world in which robots are completely autonomous and which there is no real daylight between the cognitive functioning of humans and of machines. Rather, it is a world in which humans remain necessarily on the loop --- certainly to define the objectives of the client and also to frame for the bot the universe (which jurisdiction? Which sources of law? etc.) that is to be used for their project. Agentic AI tools function as mechanical agents to flesh-and-blood human principals. Nonetheless, what we colloquially refer to as manpower will be considerably affected by growing use of these tools. After all, why sic five associates on a project, working with, say, one or two partners, when the agentic AI can do basically anything that the directing partner needs or wants from their associates? Do the arithmetic, and we can see the worry that lawyer employment will be meaningfully affected and not in a positive way.

What is an enterprising dean supposed to do with all this? Is she supposed to push the collective opinion needle in the direction of more fear about these developments, either by introducing more skepticism about the utility and value of these tools, or insisting that there are sound reasons for consumers (including here both law firms and clients) to slow their roll, and maintain traditional patterns of hiring and mentoring? The dean may be caught between their beliefs as prognosticators and their perceived fiduciary responsibilities to their stakeholders.

There are promising strategies that might address these tensions, but let’s start by clarifying what they should not be doing, and that is ignoring agentic AI, on the assumption that it is more hype than help. The evidence shows that these tools are incredibly impressive; present trends suggest steady and maybe even rapid improvement; and we have signals from the market as recently as last month (ask Lexis and Thomson Reuters about their stock plunge) that Wall Street views agentic AI as a game changer for law.

Instead, deans should dust off their cheerleading uniforms and think creatively about how to message this new world of agentic AI in a way that is positive for students and for the law school’s overall welfare and future success. Three thoughts along these lines: First, take from the best playbooks that shows deans effectively communicating about generative AI over the past couple of years and speak about how even the more fast-developing agentic reasoning models assist lawyers and lawyering, rather than supplanting them. Nothing I have yet seen in this agentic AI revolution yet undermines the essential idea that the best lawyers are the ones who possess superb judgment and can articulate in their advice to and representation of clients the right outcomes. By “right” here I mean more than a concise and data-driven depiction of how courts (or agencies or legislatures, etc) are likely to decide disputes in litigation or how a transaction is more likely than not to furnish economic value. Right also also means how the successful completion of a legal task moves the law forward, enables it to adapt to present and changing social conditions, embeds successful results for clients in a larger framework that includes ethical, efficient, and just outcomes for law and our legal system generally. As responsible legal educators, we work hard to teach our students that the distinction between what the law is and what it ought to be is a porous one; and so the obligation of lawyers is not simply to follow the law but to shape the law, and to use it for salutary purposes. Such shaping requires our putting our collective minds’ eyes on the ways in which the legal information, doctrine, and institutions have goals that must be replenished and made more supple, efficacious and ambitious. The human may be only on the loop in terms of the iterative process run by the bot through agentic AI that accomplishes the goal defined by the principal; but this human remains fundamentally in the loop in the imperative of tying together the output of, say, Claude Code or Codex (or the next new thing) and the effects of the answer spit out by the bot on law and the legal ecosystem.

To hazard a prediction: Agentic AI systems will likely develop greater sophistication in working at high levels of efficiency on complex tasks. In doing so, there will be impacts on the workflow within firms, on traditional models of partner-associate and client-lawyer delegation, and perhaps ultimately on the overall contours of entry-level legal employment. That this will create some challenges for law schools and their business models seems unavoidable. On the other hand, innovative law schools can adapt knowing that humans are essentially at the helm of the epistemological structure of all this and thus the bulk of strategic choices made in teaching and supporting students are made by humans manning the post. Lawyers’ reasoning skills may be supplanted to a meaningful, if still uncertain, degree, but their creativity and responsibility for demonstrating and communicating sound legal judgment is less replaceable.

And so deans can and should champion their law schools’ efforts to develop in their students the skills that are less amenable to adaptation or even replacement through agentic AI tools. For example, and maybe paradoxically, this suggests that we should continue to insist that law schools continue to teach core legal doctrine, including deep dives into sources of law and how they are constructed and reconfigured. Tasking a bot with digging deeply into these legal sources as an essential part of their iterative process of recommending a particular course of legal action requires a dense understanding of, say, the common law method, how statutes and administrative regulations are designed, and debates about legal interpretation (just to mention a few examples). At the same time, ambitious deans should lean into agentic AI as much as possible, in order to show stakeholders how their students are learning the most robust and constructive tech tools available to help them become the very best humans on the loop as possible.

One of the “what’s next” questions the leaders of agentic AI and law are grappling with is how to adapt their still mostly off-the-rack tools to particular settings. Without suggesting that the best pathway is one that leads to a hundred or so bespoke tools that are designed around the identified needs of particular law schools, there is surely good cause for agentic AI developers to work collaboratively with law school faculty and leadership to improve the utility of such tools for what this newest generation of lawyers, and also their clients, will want and need to do legal practice in the “right” way. We have some experience in the law-tech ecosystem about the value of well-fashioned collaborations; and agentic AI seems like a good area for fueling and sustaining exciting and effective collaborations.

My optimistic ex-dean self tells me that there is potential for deans to work their way through the dilemma of championing new developments in technology that present serious risks to the employment model, and perhaps also the training model, of traditional legal education. One just needs to be exceptionally intentional and creative about exploring ways in which agentic AI presents opportunities, while also candidly acknowledging some of the risks. Likewise, deans can communicate to their important audiences that their law schools are not obstinately resisting, but are truly embracing, developments and initiatives in both generative and agentic AI that can possibly advance the welfare of individuals who lawyers service, while also enhancing rather than hobbling the education of new lawyers. To take just one quick slice at this, think about how progress in technology-enabled research and reasoning might help bring down the cost of legal services and help close the access to justice gap. (I will focus more squarely on A2J in my next post on this subject).

What remains striking is the seeming lack of serious, constructive attention by law schools on these issues. The AALS’s contributions to these debates seem rather fuzzy. They have commented around the edges of the financial aid impact, something that seems to be approaching a true cliff and, if applicants risk topping over the cliff, there will be a tremendous reckoning among law schools seeking to maintain enrollment. The arithmetic simply doesn’t wash; law schools will need to sharply reduce tuition to meet their numbers and, given now profoundly tuition dependent are most law schools, there will certainly be major cuts, if not bloodletting on a large scale. It is possible that law schools have available useful back-up plans, but my anecdotal experience chatting up deans and other stakeholders suggests that the loan cap can has been kicked down the road.

AI presents a different sort of puzzle, to be sure. It could be that the shiny new(ish) object of AI will not significantly impact law firm hiring in the short to intermediate term. In his “legal education news of the week” substack, Prof. Derek Muller wryly notes that fears of a big cutback seem belied by the fact that high end law firms are scrambling to hire 1Ls at a fever pace. But, as he knows, this is just one segment of the market, and perhaps the more interesting and urgent question if how AI might impact hiring below the AmLaw or Vault 100. I have no crystal ball, nor do law school deans. But I do believe that some meaningful energy and ultimately strategy should be developed, if not necessarily bespoke then in tandem with many law schools (or at least law schools of like circumstances). Having come back from the AALS annual meeting earlier this month, my observation is that there is precious little attention from either the association that represents American law schools or, at least in organized ways, the collection of law school leaders and other faculty to the potential disruptions that AI poses to employment and curriculum.

One fears that the reasons are fairly prosaic: Immediate pressures loom large, and, interestingly, the usual pressure to admit a class has become ameliorated for now by the spike in law school applications. And so deans may simply be content to leave off until later the medium-term and long-term planning necessary to account for a major shift in the financing model for legal education. Moreover, AI seems even more speculative. Law schools seem (for the most part) content to fulfill its duties by furnishing table stakes. We hardly see a coherent, evidence-based, and collective conversation brewing among law schools. Law schools’ attention spans are famously and vexingly short. So much the worse for our present and future students, eager to invest in a scheme of legal education that will provide ROI and advance societal progress.

It is a perilous time for the Council of the ABA Section of Legal Education. Its role as the national accreditor (for US Department of Education purposes) and approver (for bar examination eligibility purposes) of US law schools is being challenged. The Texas Supreme Court recently announced its “tentative opinion that the ABA should no longer have the final say on whether a law school’s graduates are eligible to sit for the Texas bar exam and become licensed to practice law in Texas.” www.txcourts.gov/media/1461357/259070.pdf. Several other states are considering similar actions.

To a large degree, the Council has brought these problems upon itself. Many of the current (and proposed) accreditation Standards are highly problematic. In ways large and small, the Council overregulates law schools, stifling innovation and imposing unnecessary costs. It is probably the most intrusive accreditor in the entire U.S. higher education landscape. Nonetheless, I continue to believe that the profession, law schools and students are best served by a single accreditor/approver (at the moment, neither Texas nor any other state has proposed a workable alternative system of portability of bar examination eligibility), and I have serious doubts that any other entity will emerge as a better alternative to the Council. Therefore, I would like to see the Council survive this challenging moment, and emerge as a better, leaner accreditor. In that spirit, I offer a few suggestions for steps that might reduce the growing momentum to displace the Council from its national role, and in the process, improve the Standards.

First, the Council should rebrand itself as the Law School Accrediting Board, or some other similar title. It is the Council, not “the ABA” that regulates law schools. This is a common misunderstanding, as reflected in the phrasing of the Texas order. The Council operates almost entirely independently from the larger ABA, as is required by Department of Education rules. Given how unpopular the ABA is in certain segments of the country right now, diminishing the erroneous perception of ABA control could be good for the Council’s reputation.

This change would be consistent with other accrediting bodies. I serve as a public member of the Landscape Architecture Accreditation Board (LAAB). It operates within the framework of the American Society of Landscape Architects (ASLA), But in part because of the separate name, people don’t think or talk about ASLA accrediting landscape architecture programs. Of course, landscape architecture is a much less contentious field than law and legal education, but the point still stands.

Similary, medical schools are accredited by the Liaison Committee on Medical Education (LCME). LCME is sponsored jointly by the American Medical Association (AMA) and the Association of American Medical Colleges (AAMC). It is as if the legal education accreditor was sponsored jointly by the ABA and the Association of American Law Schools. Yet as far as I can tell, AAMC is truly perceived as an independent entity.

Second, the Council should move towards eliminating the one way the larger ABA actually participates in the accreditation process. Currently, changes to the Standards go to the ABA House of Delegates for review. The House can concur in proposals or refer them back to the Council. If the Council resubmits the proposal, it goes back to the House a second time. If the House again refers it back to the Council, the House’s role is complete. If the Council approves the proposal a third time, it becomes effective without further review by the House.

This is an odd, and not very useful, process. Most other accrediting bodies have nothing comparable. If the ABA has a view on a Council proposal, they can participate through the notice and comment process. Eliminating the House of Delegates’ formal review would further emphasize the Council’s independence from the ABA. The Council should be judged on its own actions, not those of the larger ABA.

Third, and most importantly, the Council should publicly announce an intention to scale back unnecessary or inappropriate regulations. Accreditation standards should be limited to things that are virtually essential to a quality and honest program of legal education. The Council’s job is to enable experimentation and evolution, not to drive change in a particular direction. Too often the Council gives in to vocal and influential segments of the legal education community. Many of these proposals may in fact be quite good for many or most law schools. But the Council is making rules, not establishing best practices. It is important to remember that a law school must be in full compliance with each and every Standard. If one can imagine a high quality law school not doing a certain thing, that thing should not be a nationwide requirement.

The Council recently released a promising new document, the “Core Principles and Values of Law School Accreditation,” which could serve as the basis for this process. www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/2025/council-meeting/25-aug-core-principles-accreditation.pdf. It is by no means a perfect document (see Derek Muller’s cogent critique at https://excessofdemocracy.com/blog/2025/9/the-aba-is-inventing-new-principles-for-law-school-accreditation-quietly-abolishing-others) but it does reflect a level of regulatory modesty that is too often missing from the Council’s approach. The Council should rigorously review all of the Standards against the template established by the Core Principles document. I believe that a fair-minded application of these principles would result in a significant reduction in Council regulation. In the end, I think the Standards would wind up looking a lot more like the minimalist Model Rule proposed by Muller.

The Council should also apply the Core Principles in selecting new members. The Nominating Committee should make an effort to add several members who are committed to the principle of limited regulation. People like Derek Muller and Dan Rodriguez, for example, could really change the Council dynamic. There is a mechanism for people to seek election to the Council apart from the Nominating Committee route, but I am not sure that it has ever been utilized. In part, that is because to vote on selections for Council membership, a member of the Section of Legal Education (any member of the ABA can join the section) must personally attend the ABA Annual Meeting. The Council should broaden voting participation by removing the requirement of in-person voting.

A serious effort to reform itself could help salvage the Council’s role as the national accreditor law schools and principal gatekeeper for eligibility to take the bar exam. Otherwise, the process of seeking alternatives to “the ABA” is likely to accelerate. Can the Council meet the moment?

However, there is a possible obstacle to the Council’s effort to run roughshod over the diverse constituencies who have expressed doubts about the wisdom of this proposal, a proposal that will certainly impose burdens of time and treasure at a moment in which the state of legal education and the legal profession in the U.S. is in serious flux. That obstacle comes from state bar authorities, a few of which have already expressed grave concern with the overbearing character of ABA accreditation — although, to be clear, not necessarily to this proposal. Such authorities could well step in and make crystal clear that law graduates seeking admission to the bar in their states would not be obstructed in their quest by the fact that they graduated from a law school which has not met these new requirements. Reflect on this for a sec. It is well within the discretion of these authorities to undertake on behalf of law graduates what we might call a partial rebellion. That is to say that they might leave the ABA’s accrediting power mostly intact, but decide that law schools may graduate students who are fully qualified for admission to the bar even if these same law schools have provided a curriculum that is not fully standards-compliant. From my perspective, this is not the general situation we should want. I have said in the past that the right pathway is a “mend it, not end it” strategy, with the Section through its Council listening closely to concerns expressed from myriad stakeholders, rethinking some of its more burdensome, and ill-supported standards, and working to adapt its approach in order to provide a 21st century structure that meets the needs of law schools, students, and the profession.

But the experiential learning debacle reveals a Council that defiantly declines to listen to their constituents, including the deans, and is steadfastly unwilling to do the kind of learning and innovating that the times are demanding. In this game of chicken, it is not clear that their authority will survive this latest scuffle. Indeed, it perhaps out not to survive wholly intact. The experiential learning proposal is a really bad idea whose time has not at all come. And it reflects a breathtaking stubbornness on the part of the folks in the room where it happens.

Responding to the Texas Supreme Court’s request for comments on their ongoing process of rethinking the role of the ABA in accrediting law schools in the state of Texas, the dean of the University of Texas Law School, Bobby Chesney, wrote a remarkably thoughtful and far-sighted letter to the court in which he suggested that the court might well think hard and creatively about what a post-ABA accreditation regime would look like. Dean Chesney is careful in not advocating that the ABA’s accreditation role be displaced, but he does note some of the ambient criticisms of the ABA’s unwavering focus on inputs rather than outcomes, including the objections to the experiential learning proposal. He notes wisely how the present turbulence in the legal profession, wrought by changes in technology, the pressing access to justice crisis, and other pressures, ought to cause some ambitious fresh thinking — thinking that may well lead to major change in how this states and others might reform the accreditation system. The trick in accreditation, Chesney writes, “is to carry out this screening without unduly suppressing innovation, imposing unwarranted conformity, or driving up educational costs unnecessarily. Efforts to ensure adequate law school quality, in other words, need to be balanced with appreciation for those risks.” Bluntly noting that the ABA’s current approach might not appreciate adequately these risks, he concludes that “a well-designed alternative pathway should turn on an intentionally-parsimonious set of benchmarks for baseline adequacy, thus leaving maximum room for innovation. If well chosen, those benchmarks might actually be relatively administrable.” And he ends with a truly imaginative nod to a possible future: “[I]t would be fascinating to see what might arise should the Court reopen such a pathway given the current climate of innovation, change, and cost concerns.”

Fascinating indeed. Through its defiance, the ABA Council has, in its ham-handed handling of the experiential learning requirement, perhaps pushed the door open to this possible future — and not merely in the great state of Texas.

To canvas this very briefly, the ABA has come under fire for its evaluation of federal judge candidates. The ABA is seen as much too woke and much too biased. The Trump administration has made crystal clear that it will not pay heed to ABA recommendations and so it would seem that this large group of lawyers will largely become sidelined as judges are nominated and evaluated in the coming months. We should expect a continuing torrent of lawyers and others who will chime in, as is their right of course, when a judge is being considered (see the recent letters on Emil Bove, the new 3rd circuit judge). But no longer will the ABA be in a position to speak in a united voice, and with what has historically been a decent amount of influence, over the process of selecting judges.

As to the Legal Ed section, here the criticism from Trump and his followers, including conservative voices in the states, is rather consequential. That is to say that the folks are highly critical of the ways in which the Section has been carrying out its accreditation functions. DEI is a flash point, and specifically the lengths to which the Section has gone to insist on diversity in admissions and faculty hirings. The standards themselves are not new, but the political tides have turned against imposing DEI requirements (not to mention a major Supreme Court case from a few years back limiting the use of race in admissions). This criticism has often been joined with a rather longstanding concern about the micro-management of law schools by the Section, and ways in which the heavy hand of regulation has made legal education more expensive and less innovative. Although these critiques are not new, they are steadily building up an impressive head of steam, and the Section is already under assault by those who would, to flip around the old saying, end it, not mend it.

Leaving to one side questions about what should or should not be done, let me take a step back and ask the question pertinent to these battles: How does and should the ABA learn? Supposing that the right approach here is not abject defiance, can we expect these twin entities — the big ABA and the Section on Legal Education — to learn from their mistakes, make course corrections, and develop and sustain strategies that enable them to perform functions of value and benefit to lawyers, law schools, law students, and others with a stake in the welfare of the legal profession?

The ABA’s modus operandi is the creation and sustenance of various policies relevant to the legal profession, including so-called model rules, crafted to provide state regulatory authorities a set of off-the-rack regulations and guidelines to maintain good standards and best practices in the legal profession. The most substantial and enduring of these regulations are those involving professional responsibility, including a range of responsibilities pertaining to clients, legal actors within the system (such as judges), and the general public. These policies are produced by the hard work of committees — and the ABA has legions of committees — and vetted through a labyrinth of overseers, including the House of Delegates and the Board of Governors. It is pertinent to the topic of learning to note that all of the decisionmakers are lawyers. Moreover, the key decisionmakers, in committees and elsewhere, are volunteers, not public officials. They come from the bench and the bar, and also from academia. They lend their expertise and their insights to elaborate schemes for advancing objectives, all under the rubric of the supreme goal of “defending liberty” and “preserving justice.”

In the trenches, the ABA is a fundamentally conservative organization. Its history (dating from the 19th century) illustrates the tacit, yet tangible, goal of protecting the interests of lawyers. An unremarkable objective, when we think about the omnibus goals of trade organizations generally. And yet this persistent goal of protecting and enhancing the welfare of lawyers becomes more problematic, or at least more complicated, when we stop to note that the overall goals of defending liberty and preserving justice are public goals and, further, lawyers are officers of the court with responsibilities to look after the welfare of the general public, a public that constantly interacts with the justice system and has a deep and broad stake in the good work of the justice system, even if not narrowly invested in the business of lawyering. I remember the exhortation by the chair of the Commission of the Future Services, on which I had the privilege to serve nearly a decade ago, that we should think of our remit as improving the well-being of those impacted by law, not the well-being of lawyers. This was a powerful and inspiring sentiment, although time in ABA work for the next decade-and-counting would persuade me that this was a rather unrealistic objective given that we were nested in an organization that would persistently look after the collective interest of lawyers.

All this brings us to the question of learning. The ABA is captured in the classic sense of the term by groups of lawyers who are looking out for their welfare as lawyers. This doesn’t imply a criticism, for this is after all the aim of a trade organization created explicitly to advance lawyers’ interests. Nor is lawyer welfare necessarily at cross purposes with the interests of those who are served by law. But it does mean that the public can be mislead into thinking that the ABA is really, truly, consistently going to act on behalf of the public and with its best efforts to improve the justice system. Indeed, it is not too provocative to say that when the justice system is improved by ABA decisions, that is a happy by-product of its efforts, not the result of avowedly justice-centered initiative.

Let me be more specific by reference to two examples, drawing on a personal anecdote. We know that there is a crushing access to justice crisis in the contemporary United States. Lawyer self-interest is not necessarily the cause of this crisis, but we should all agree that such self-interest impedes efforts at ameliorating this crisis. Walls and moats that keep out para-professionals from furnishing support and even direct legal services have been preserved not only through ubiquitous “unauthorized practice of law” [UPL] provisions in state law, but also through the ABA’s longstanding blessing on UPL rules and, moreover, professional responsibility rules that are resolutely lawyer centered. The ABA’s consistent opposition to non-lawyer investment in and ownership of law firms (distinctly out of sync with the mothership of the common law, the United Kingdom) arguably makes the A2J problem worse. It can hardly be said that the ABA has consistently put the A2J crisis high on its agenda, although we should be fair in saying that there are occasional resolutions and task forces that indicate a concern among many constituencies within the ABA (and even some of its leadership) that speak to the crisis. The bottom line is that when the ABA could be a powerful force for substantial reform, in the direction of widening access to justice and undertaking real innovations that would make change, they are often notably quiet and, in the worst case, obstructionist. “Is this good for lawyers” is often the question, instead of “is this good for the justice system?”

My anecdote comes from my experience as first a member and later the chair of the ABA Center for Innovation. This was an outgrowth of the Futures Commission previously mentioned. It was institutionalized as a way of advancing innovative endeavors within the ABA. Many of us had high hopes for the Center. These high hopes have, sadly, gone unrealized. In 2020, what Center members thought of as a fairly uncontroversial resolution that would have called for more innovation in the provision of legal services, without describing exact strategies for carrying that out, was rendered spineless by spirited opposition and, worse yet, back office politicking. Shrewd ABA operators first insisted on inserting provisions into the resolution that in essence said that experimentation with non-lawyer legal services provision should be considered, except in the areas of housing, debt collection, immigration, and family law — yes, in essence, all of those areas of law in which lawyers had failed to provide adequate service and in which non-lawyer support was most needed. Further, notorious opponents of change (many staffing what is called in ABA circles the “big five” bar associations) managed to insert a eleventh-hour provision that insisted that no effort to roll back Model Rule 5.4, that being the prohibition against non-lawyer ownership of law firms should be considered, much less undertaken. This instantiation of the controversial Rule 5.4 was further strengthened a couple years later, as though to make the point crystal clear: Keep your hands off Rule 5.4 and the scheme that maintained a monopoly of lawyers over law firm ownership. As though this wasn’t enough to defang the work of the Center, presidents of the ABA started weakening its work by appointing folks lukewarm about innovation. A fairly recent ABA president went even further by appointing a couple folks who are infamous for their skepticism about reform and antipathy to anything that could be styled as innovation. So much for an innovation center in the ABA.

Theories of organizational learning teach us that there must be systems in place that enable organizations to discern errors, learn from failures, and incorporate feedback in order to adapt and innovate. One prominent theorist has noted the value of what he calls “double loop learning.” Such learning not only correct errors based on existing rules or assumptions (which is known as single-loop learning), but also question and modify the underlying assumptions, goals, and norms that led to those actions. The first loop uses the goals or decision-making rules, the second loop enables their modification, hence "double-loop." Such learning is, I would add, synthetic, iterative, and evidence based. Moreover, organizations that are limited in the construction to members from one profession or one discipline would greatly benefit from incorporating voices and perspectives from outside the tent. In our work on the Futures Commission, for example, some of the more imaginative contributions came from non-lawyers, including, especially, technologists, public health professionals, and social workers, and also from lawyers abroad.

The ability of an organization to do the hard work of revisiting existing practices, in light of information that suggests that business as usual is often bad business, is highly prized and indeed fundamentally necessary. Relatedly, the organization should, as in double-loop learning, reexamine existing norms and goals and also the assumptions about present states of the world that underlie those assumptions. The ABA has had difficulty is doing this, and so it is hobbled in its ability to learn. It is tempting to think about this as primarily a matter of interest group capture, that is, as a problem that stems from the brute fact that lawyers are habitually committed to thinking only about the well-being of lawyers and that the primary organization of lawyers is structurally committed to doing so as well. But this is too pat an explanation. An organization of lawyers need not necessarily be exclusively lawyer-centered. Accomplishing the twin aims of defending liberty and preserving justice requires the collective work of myriad stakeholders, including but not limited to lawyers. A lawyers’ organization can understand that — or, sticking with the same thing, it can learn that. By focusing deliberately on efforts that enhance the well-being of the justice system, a system facilitated by, just as it facilitates, the rule of law, the ABA can better learn as an organization, and can simultaneously represent the best interests of lawyers, as it should, while improving the system for the public interest. How to navigate difficult issues where these interests collide will be difficult to be sure, but the project of organizational learning when done right is to develop mechanisms that assist in negotiating disputes and, if not optimizing, than at least satisficing. Doing that would lead to a better ABA. And a better ABA means a better justice system.

Turning to the ABA Legal Education section, here the challenge is similarly acute, although not intractable. As I and others have written, the Section does important work in protecting the interests of law students and ultimately of the general public in implementing and maintaining standards for acceptable legal education. The goal is a laudatory one, and while there is something to the idea that we could experiment with entrusting the responsibility of good legal instruction to the schools themselves, albeit with some minimal requirements of information disclosure to assure that an unwary public know that is happening under the hood, we have arrived at a system that looks for some appropriate amount of regulation to protect consumers (including but not limited to law students) while also preserving a wide space for innovation and experimentation. That all said, we are in a period of moderate discontent (in some quarters, great discontent) with the system as presently constructed. Much has been said, with which I broadly agree, about the unnecessarily burdensome regulations imposed on law schools, regulations that build from premises that are infrequently evidence based and data driven. The highly misguided effort underway to impose a greater quotient of experiential learning requirements is one conspicuous example. Prof. Derek Mueller has thoroughly demolished the theoretical and empirical case for this revision, and a large number of deans have vigorously argued against it. Leaving aside the particulars of this debate over one regulatory standard, it is remarkable how little the current Section Council seems willing to learn in its effort to impose rapidly this new, expensive requirement. And yet this is of a piece with many efforts in years past. The requirement of a “valid and reliable” admission test, for example, is out of whack with the pattern of regulation in other professional settings and, moreover, there has been precious little truly exemplary work done by the Council to interrogate either the fundamental question of what value a particular privileged test, such as the LSAT, provides to access and opportunity for prospective students or to the learning culture of the law school. To be sure, there are hoary studies that aim at the question of what certain test scores tell us about performance in the first year of law school, but these assessments ultimately raise more questions than they answer. Further, this is little systematic effort to connect certain tests to success as lawyers (a problem not unconnected the continuing debate over the relevance of the present bar exam to that such question). More narrowly, the safe harbor of the LSAT has famously impeded experiments in other forms of assessment (be it the GRE or the new and innovative JD-Next program). Even when the ABA lowers the drawbridge just a smidgen, their actions are frustratingly begrudging and bureaucratic.

The problem is not the absence of well-meaning volunteers and staff in the Section. The Council is typically made up of diligent, experienced legal profs from many areas of the profession. And the Section has been ably led by highly skilled individuals, such as Jennifer Rosato Perea and, before her, Barry Currier. Problematic is the capacity and commitment of the Section to engage resolutely in organizational learning. Revisiting premises, ideating, gathering meaningful data, analyzing these data with well-trained social scientists, experimenting with different structures and strategies of regulation, and, finally, taking a fresh look at where regulation is unnecessary and should be rolled back . . . These should be central to the project of the work of the Section. Organizational learning should be preceded by best assessing how to learn. These are neglected, yet important, lessons which both parts of the ABA herein discussed should learn in order to stake off attacks by opponents who would take a sledgehammer to the organizations, possibly leaving us worse off than we are now.