Mark Greenbaum has an uncommonly silly op-ed in today’s Los Angeles Times in which he advocates stripping the ABA of its law school accreditation process, not because of its loony-left leanings (a pretty good reason in its own right, but that’s another topic) but because it … get this … obeys antitrust law. That’s right, while most normal people accuse lawyers of behaving like a guild and protecting their own from the market place (see, e.g., Standard Mischief and Jody laying the guild trip on me a few years back over UPL issues in SC), this guy is actually complaining about the ABA not doing so. Greenbaum writes:

Remember the old joke about 20,000 lawyers at the bottom of the sea being “a good start”?

Yes, but I also remember the old jokes about lawyers charging too much. For those of us who understand the law of supply and demand, pick one. What cheaper X? Then do what you can to create a glut on the X market. Would 20,000 lawyers at the bottom of the sea be a good start? Sure it would – for us lawyers, unless we ourselves happen to be among those 20,000. Fewer competitors vs. same demand for the services I offer? I’ll take that.

Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys.

That kinda sucks for all of us lawyers, and it really, really sucks for those trying to enter the profession now. For those who may have the need to hire an attorney, not so much. Quick, let’s get the federal government involved!

Part of the problem can be traced to the American Bar Assn., which continues to allow unneeded new schools to open and refuses to properly regulate the schools, many of which release numbers that paint an overly rosy picture of employment prospects for their recent graduates.

Note the clever weaving and wobbling between potentially legitimate concerns about a body refusing to properly regulate accredited schools, and the clearly illegitimate objection to them accrediting schools the profession doesn’t “need.” ABA accreditation is supposed to measure the quality of legal education; it’s not there to guarantee anybody a job.

There is a finite number of jobs for lawyers, and this continual flood of graduates only suppresses wages.

Bingo. Welcome to the economic realities every other friggin’ profession, with the possible exceptions of medicine and dentistry, have had to deal with for centuries, and which all occupations and professions have faced in spades over the past couple of years.

Because the ABA has repeatedly signaled its unwillingness to adapt to this changing reality, the federal government should consider taking steps to stop the rapid flow of attorneys into a marketplace that cannot sustain them.

Yes, let’s have the federal government, which licenses no attorneys (other than a couple hundred thousand of us in DC) step in and tell all 50 states not only who they can admit, but who can be educated enough to be able to seek admission the first place.

From 2004 through 2008, the field grew less than 1% per year on average, going from 735,000 people making a living as attorneys to just 760,000, with the Bureau of Labor Statistics postulating that the field will grow at the same rate through 2016. Taking into account retirements, deaths and that the bureau’s data is pre-recession, the number of new positions is likely to be fewer than 30,000 per year. That is far fewer than what’s needed to accommodate the 45,000 juris doctors graduating from U.S. law schools each year.

So? Don’t go to law school, then. At least, not unless you can get in to an elite school, graduate at or near the top of your class or preferably, both.

This jobs gap is even more problematic given the rising cost of tuition. In 2008, the median tuition at state schools for nonresidents was $26,000 a year, and $34,000 for private schools — and much higher in some states, such as California. Students racked up an average loan debt in 2007-08 of $59,000 for students from public law schools and $92,000 for those from private schools, according to the ABA, and a recent Law School Survey of Student Engagement found that nearly one-third of respondents said they would owe about $120,000.

So? Go out and educate the public about what a bad deal law school may be for the average law student nowadays. When word gets around, demand for law schools will drop, and schools will have no choice but to cut tuition. Or we can artificially limit the number of schools available to those seeking legal education, and scratch our heads in disbelief when tuition skyrockets even higher. Supply and demand, what a concept.

Such debt would be manageable if a world of lucrative jobs awaited the newly minted attorneys, but this is not the case. A recent working paper by Herwig Schlunk of Vanderbilt Law School contends that with the exception of some of those at the best schools, going for a law degree is a bad investment and that most students will be “unlikely ever to dig themselves out from” under their debt. This problem is exacerbated by the existing law school system.

Then maybe we tell career counselors to do a better job warning marginal candidates away from the legal profession, or perhaps have the federal government stop giving so many federally guaranteed student loans to students who aren’t performing at a level that indicates they have a decent shot at success. Or we can ask the ABA to stop accrediting schools that do exactly what they’re supposed to do, as effectively as they are supposed to, solely because the guild wants there to be fewer of them. Your call.

Despite the tough job market, new schools continue to sprout like weeds. Today there are 200 ABA-accredited law schools in the U.S., with more on the way, as many have been awarded provisional accreditation. In California alone, there are 21 law schools that are either accredited or provisionally accredited, including the new one at UC Irvine.

They say the fish rots from the head down so let’s start with the top two schools in the state, Berkeley Law (Boalt) and that other place. That other place is a private institution so we can’t do much about that, but we can always get rid of Boalt. That should make California much less of a magnet for would-be lawyers and make it that much easier for ordinary law students from ordinary law schools to get those scarce jobs after all. [It would also make my own law degree from that same institution all the more valuable, but never mind that.]

The ABA cites antitrust concerns in refusing to block new schools, taking a weak approach to regulation. For example, in 2008 the ABA created an accreditation task force to study the need for changes, but saddled it with a narrow charter. In the end, it proposed only cosmetic changes and rejected out of hand the possibility of giving up control over accreditation, calling the idea not viable and “draconian.”

Antitrust laws are, of course, intended to promote competition so that prices come down. Note that Greenberg doesn’t even try to argue that intentionally limiting the supply of lawyers for purposes of propping up prices is allowable; he simply notes that the ABA has (correctly) raised this concern itself, and goes on to complain about the fact that a group of lawyers actually … gasp … obeyed the law.

The task force also raised the possibility that if the ABA gave up its accreditation authority, the Federalist Society, a conservative-leaning interest group, could take over that job. This is an intellectually dishonest red herring, likely injected to divert attention from the idea’s merits. The Federalist Society would have no reason to do this because the technical, expensive accrediting process does not gibe with its mission, nor would the Department of Education be likely to give it such authority.

True; much as I’d like to see the Federalist Society take over accreditation, it ain’t gonna happen. That said, the mere fact that an ABA task force allegedly raised one stupid argument against strengthening the cartel does not make the non-stupid arguments go away.

The ABA has also refused to create and oversee an independent method of reporting graduate data. Postgraduate employment information generally provides the most useful facts for prospective students to study in deciding whether to go to law school.

Oh no! The ABA isn’t tracking postgraduate employment beyond bar admission statistics (which are of course tracked, and which play a significant role in accreditation)? Maybe someone else better track that stuff instead! Oh wait…

In many cases, the data that schools now furnish are based on self-reported information, skewing the results because unemployed and low-paying grads are less likely to report back. Law schools do this because they want the rosiest picture possible for the influential rankings given by U.S. News & World Report.

But of course law schools wouldn’t do the same thing if placement statistics were taken into account in their ABA ratings. ‘Cuz we all know law schools want to please US News but not the ABA. Or something like that.

Despite its ample resources, the ABA has rebuffed calls to monitor the schools to get more accurate data, calling the existing framework an effective “honor system.”

Got a better approach? Let’s hear it. I’m sure US News would be delighted to incorporate it.

Based on what happened with the accreditation task force, the ABA is not likely to force change; it is too intertwined with the law schools. ABA groups — such as the task force, which was chaired by a former dean — are stacked with school officials who have no incentive to change the status quo. This is why the ABA should get out of the accreditation business completely.

And do what? Replace it with some group that has no stake in the legal profession at all? Or do we want someone with Mark’s dog in this fight?

Unlike other professional fields such as medicine and public health, whose preeminent professional organizations do not have control over the accreditation of schools and programs, the ABA exercises unfettered power over the accreditation of law schools.

That makes sense. While lawyers suffer a glut in the market that will inevitably drive down the cost of legal services, everyone’s complaining about how much cheaper medicine and denistry are in the U.S. than they are in every other industrialized country. Right?

The American Dental Assn., the nation’s leading dental group, offers a model for the ABA to follow. It accredits schools but assiduously guards the profession and has allowed respected dental schools such as the ones at Emory, Georgetown and Northwestern to close for economic reasons and to prevent market saturation. Such a move by the bar association would be unprecedented. Dental schools go even further to protect the profession’s integrity by collectively boycotting the U.S. News rankings.

Oh goody, first it’s about regulating the cartel, now they’re on to group boycotts against the one independent rater that really does seek to rate not only according to the quality of education provided but also according to one’s prospects for gainful employment after graduation. Piss them off enough and they’ll surely organize a group boycott against you, too. Antitrust laws are for the little people.

The U.S. Department of Education should strip the ABA of its accreditor status and give the authority to an organization that is free of conflicts of interest, such as the Assn. of American Law Schools or a new group.

Like who? US News? Or any other disinterested organization, whom they should then turn around and group-boycott if they tilt in a direction that is too pro-consumer rather than protecting the guild?

Although the AALS is made up of law schools, it is an independent, nonprofit, academic — not professional — group, which could be expected to maintain the viability and status of the profession, properly regulate law schools, curtail the opening of new programs and perhaps even shut down unneeded schools. The AALS has cast a very skeptical eye on for-profit schools, compared with the ABA’s weak hands-off accreditation policies.

So, on the one hand, we should push illegal, anti-consumer policies for sole purpose of protecting lawyers’ profits. On the other, we should hand over accreditation to AALS because it hates profits. Maybe this nuanced approach to good vs. bad profits makes sense to Michael Moore, but I’m having a hard time wrapping my head around it myself.

Although these would be unprecedented moves, they are necessary. The legal profession must be saved from itself.

Yes, you heard that right. We the lawyers need more protection from you, the clients and prospective clients, against the evil of you not having to pay us enough.