The ABA standards and regulatory modesty

This post is from Prof. David Yellen of the University of Miami Law School.  Yellen has served as the dean at Miami, Loyola-Chicago, and Hofstra law schools. He has served on the ABA's Standards Review Committee and on the ABA Task Force on Legal Education, in addition to other leadership positions.

I’d like to add a few thoughts to Dan Rodriguez’s recent posts about the accreditation work of the Council of the ABA Section on Legal Education.  Like Dan, I have viewed calls for the replacement of the Council as law school accreditor as misguided.  As Barry Currier argues compellingly, having a national “approver” for bar licensing purposes is essential.  https://barrycurrier.substack.com/. Despite what I view as a very mixed record by the Council, I have no reason to think that a newly constituted entity would represent a significant improvement, to say nothing of the enormous transition costs involved. And I certainly have no confidence in the Trump Administration’s approach to accreditation “reform”.

That said, some of the Council’s recent actions makes defending it difficult.  Derek Muller has explored some of the Council’s overreach.  https://excessofdemocracy.com/blog/2025/5/inside-the-abas-relentless-quest-to-make-law-school-accreditation-more-tedious-and-more-expensive . Most notably, the Council has sent out for notice and comment two proposals that, taken together, would represent the most radical intrusion into the operation of law schools that I can recall. One is a proposal to double the number of required experiential learning credits from 6 to 12.  The other is to mandate tenure or tenure-like protections for all full time law faculty, including clinical faculty, legal writing faculty and academic support/bar preparation instructors.

To start with the “terms of employment,” while I personally support long term contracts and voting participation for clinicians and legal writing faculty (to be honest, I have not thought much about the issue regarding academic support/bar instructors), I have never seen this a legitimate accreditation issue.  It is worth noting that no other accrediting body in the U.S. has any similar provision.  And the proposal may be counterproductive: to maintain flexibility, I can see law schools switching from full time to part time faculty in some of these areas, even if they do not believe that makes sense pedagogically.

It is more appropriate for the Council to consider regulations regarding the academic program itself.  I share the view that experiential learning is essential and believe that requiring 12 credits as a school-based goal is desirable and attainable (by way of disclosure, a bit over a decade ago, as a member of the ABA’s Standards Review Committee, I voted in favor of the current 6 credit requirement).  But the case for a uniform national mandate doubling the current requirement has not been made.

The Council claims that “legal education is significantly behind other professions that require experiential learning.”  As a matter of accreditation policy, however, this is not correct.  It is true that student doctors, dentists and veterinarians, for example, are required to engage in much more experiential learning than are law students. But this is not because of accreditation rules, and the sources cited by the Council memo do not support their position.  Instead, other professional schools require more experiential learning because of culture and licensing requirements. 

This is not a small point.  There are many reasons, both good and bad, that legal education developed in a way that did not originally emphasize practical training. In recent years, law schools have been evolving to place greater value on experiential learning and I hope that trend continues.  Others may disagree. And perhaps bar licensing agencies should/will require more practical training.  In fact, there are some wonderfully creative alternative licensing paths being tried that may eventually send the bar exam to the ignominious end it deserves.  But these developments are happening as the result of thoughtful advocacy and discussion, as well as market forces, not the heavy hand  of an accreditor.

What is the impetus behind the Council’s accelerating overreach?  Some consider it to be “regulatory capture." I resist that label.  I greatly respect most of the people I have known who have served on the Council.  I am confident that they sincerely believe that they are helping to improve legal education.

However, in my view, the Council too often seems to disregard the limited nature of the accreditation function.  As someone who serves on another accrediting body and who has worked with a handful of other accreditors at the university level, I urge the Council to adopt a posture of regulatory modesty and restraint. The Standards should be limited to rules that are reasonably necessary to ensure a quality legal education experience.  They should not be a formalization of what some believe to be best practices. Judged on that basis, the Standards are dramatically more detailed and intrusive than the rules governing any other professional education field. The ABA Task Force on the Future of Legal Education, on which I served, had it right over a decade ago when it urged that “a number of the Standards be repealed or dramatically changed.” The Standards too often burden law schools in ways that raise costs and inhibit innovation.  They need to change direction before it is too late.