The Volokh Conspiracy
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Comment to the Texas Supreme Court On Whether To "Reduce Or End" Reliance on the American Bar Association
"What is good for Texas is not necessarily good for the University of Texas, and vice versa."
In April, the Supreme Court of Texas invited comments on whether Texas should "reduce or end" reliance on the American Bar Association's Section on Legal Education. A few weeks ago, the Civitas Institute organized a symposium on this important topic. I have now submitted a comment to the Court. In short, whether the Court keeps or abandons the ABA, there should be a recognition that the interests of law deans are not always consonant with the interests of the general public.
Here is my comment:
I submit this comment in my individual capacity, and not on behalf of my employer, the South Texas College of Law Houston. Admittedly, my views about the ABA are out of sync with those of most law professors and deans in Texas. I submit this minority report quite deliberately. The Supreme Court's order invited "comments on this topic from the Texas Board of Law Examiners, the Texas law school deans, the bar, and the public." With respect, I think this order lists the relevant constituencies backwards. The Supreme Court's authority to regulate the legal profession is premised on serving the public interest. And the interests of law school deans, in particular, are not always consonant with the public interest.
A simple example illustrates this point. Were the Supreme Court to end its reliance on the American Bar Association, the most immediate practical effect would be on portability: Students who graduate from Texas law schools that are not ABA accredited may not be eligible to sit for bar exams in other states. To law school deans, this outcome would be an anathema. How can elite law schools thrive without recruiting top students who will not stay in Texas? Of course, Texas could still allow students who graduate from law schools in other states to sit for the Texas Bar exam. And nothing would prevent elite law schools from voluntarily undergoing ABA accreditation. The theoretical problem is limited to students who graduate from non-elite Texas law schools who seek to leave our state.
I think the public would ask a reasonable question: Why should the state adopt rules to benefit people who have no interest in serving Texans? Herein lies the disconnect. Two decades ago, Justice Clarence Thomas lamented that the University of Michigan Law School was little more than "a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan." Thomas, as usual, was right. He questioned UM's "decision to be an elite institution [that] does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan." What is good for Texas is not necessarily good for the University of Texas, and vice versa.
In June, I helped to organize a symposium hosted by the Civitas Institute about Texas and the Future of Legal Education. This conversation advanced a range of criticisms about the ABA's role. I think each essay, which I've appended to this comment, is worth studying. But here, I urge the Court to consider the broader interest of the public, and not simply the concerns of entrenched regulated entities. There is no demonstrable connection between the ABA's onerous regulations and "promoting high-quality and cost-effective legal education." In the past decade, the Supreme Court of Texas erred by adopting the Uniform Bar Exam and joining the NextGen Bar Exam—decisions that were part of the conveyor belt towards nationwide portability. In that process, the Supreme Court has neglected the teaching of Texas law and flattened federalism. The time is now ripe for the Supreme Court to change course. If portability is so important, there are other ways to accomplish this end than through the ABA's byzantine regime.
I do hope SCOTX changes course.
