1 The original constitution of the American Bar Association provided for the establishment of the Committee on Legal Education and Admissions to the Bar. I ABA Reports 16 (1878). At the first meeting of the association, this committee was to come up with “some plan for assimilating throughout the Union, the requirements of candidates for admission to the bar, and for regulating, on principles of comity, the standing, throughout the Union, of gentlemen already admitted to practice in their own States.”Id. at 26.Google Scholar

2 Russell N. Sullivan, The Professional Associations and Legal Education, 4 J. Legal Educ. 401, 407 (1952).Google Scholar

3 46 ABA Reports 687-88 (1921).Google Scholar

4 Id. at 687; 52 ABA Reports 338-40 (1927).Google Scholar

5 The ABA standards and their influence on the nation's law schools and the legal profession have been discussed to some extent by the following authors: Jerold S. Auerbach, Enmity and Amity: Law Teachers and Practitioners, 1900-1922, in Donald Fleming & Bernard Bailyn, eds., Law in American History (Boston: Little, Brown & Co., 1971); Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976); Michael P. Cox, Part-Time Legal Education: The Kelso Report and More, 27 J. Legal Educ. 473 (1976); Lawrence M. Friedman, A History of American Law 525-66 (New York: Simon & Schuster, 1973); Albert J. Harno, Legal Education in the United States (San Francisco: Bancroft-Whitney, 1953); Charles D. Kelso, The AALS Study of Part-Time Legal Education: Final Report (Washington, D.C.: Association of American Law Schools, 1972); Lowell S. Nicholson, The Law Schools of the United States: A Statistical and Analytical Report Based on 136 Completed Questionnaires and on Inspections of 160 Law Schools (Prepared for the Survey of the Legal Profession) (Baltimore: Lord Baltimore Press, 1958); Michael Schudson, The Flexner Report and the Reed Report: Notes on the History of Professional Education in the United States, 55 Soc. Sci. Q. 347 (1974); Robert Stevens, Two Cheers for 1870: The American Law School, in Donald Fleming & Bernard Bailyn, eds., Law in American History (Boston: Little, Brown & Co., 1971); Sullivan, supra note 2; and Joseph T. Tinnelly, Part-Time Legal Education: A Study of the Problems of Evening Schools (New York: Foundation Press, 1957). The bulk of these discussions, however, focuses on the history of the ABA standards and their adoption. Only a few (e.g., Tinnelly at 19-33 and Stevens at 493-511) explore at any length the relationship between the standards and the structure of American legal education.Google Scholar

6 46 ABA Reports 687-88 (1921).Google Scholar

7 Friedman, supra note 5, at 537. See also Auerbach, Unequal Justice, supra note 5, at 107; Stevens, supra note 5, at 460; Schudson, supra note 5, at 353-54.Google Scholar

8 Alfred Zantzinger Reed, Training for the Public Profession of the Law (New York: Carnegie Foundation for the Advancement of Teaching, 1921); Schudson, supra note 5, at 349; Tinnelly, supra note 5, at 5-6.Google Scholar

9 Reed, supra note 8, at 396-97; Cox, supra note 5, at 474; Friedman, supra note 5, at 537-38; Stevens, supra note 5, at 463; Auerbach, Enmity and Amity, supra note 5, at 573-77; Tinnelly, supra note 5, at 5-7. It should be noted that even today people from lower socioeconomic backgrounds rely heavily on part-time legal education to obtain access to the legal profession. Vic-tor G. Rosenblum and Frances K. Zemans, in their study of legal education and the professional development of lawyers, under the auspices of the American Bar Foundation, revealed that lawyers who had graduated from part-time divisions of multiple-division law schools were more likely to have fathers who were blue-collar workers than were lawyers who graduated from the full-time divisions of the same schools.Google Scholar

10 See note 7 supra. This group is often referred to as the “schoolmen,” meaning “those who were connected with or believed in legal education in law schools rather than in law offices.” Preble Stolz, Training for the Public Profession of the Law (1921): A Contemporary Review, in Herbert L. Packer & Thomas Ehrlich, eds., New Directions in Legal Education 227, at 233, 234-39 (Prepared for the Carnegie Commission on Higher Education) (New York: McGraw-Hill Book Co., 1972); see also Auerbach, Enmity and Amity, supra note 5, at 578; Warren A. Seavey, The Association of American Law Schools in Retrospect, 3 J. Legal Educ. 153, 154-73 (1950); and E. Gordon Gee & Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer Competency, 1977 B.Y.U.L. Rev. 689, 736-43.Google Scholar

11 46 ABA Reports 656-78 (1921). See also Stevens, supra note 5, at 463; Auerbach, Enmity and Amity, supra note 5, at 551-601.Google Scholar

12 Schudson, supra note 5, at 353; Stolz, supra note 10, at 239.Google Scholar

13 Stolz, supra note 10, at 241. Members of the ABA anticipated consequences similar to those experienced by the medical profession following passage of medical school standards and publication of the Flexner report. See Stevens, supra note 5, at 459-60.Google Scholar

14 Sullivan, supra note 2, at 418.Google Scholar

15 Id.; 54 ABA Reports 59-60 (1929).Google Scholar

16 Reed, supra note 8, at 189-92, 414-16; Alfred Zantzinger Reed, Present-Day Law Schools in the United States and Canada 94-99 (New York: Carnegie Foundation for the Advancement of Teaching, 1928).Google Scholar

17 Tinnelly, supra note 5, at 8-9; Auerbach, Enmity and Amity, supra note 5, at 477.Google Scholar

18 Tinnelly, supra note 5, at 10-11 (esp. n.35, citing Lewis, 6 Am. L. School Rev. 567 (1930)).Google Scholar

See also Sullivan, supra note 2, at 410; William Draper Lewis, Address, 54 ABA Reports 664-69 (1929).Google Scholar

19 Schudson, supra note 5, at 353-54; see also Stolz, supra note 10 at 244.Google Scholar

20 Schudson, supra note 5, at 353-54.Google Scholar

21 Will Shafroth, The Next Step in the Improvement of Bar Admissions, ABA Rev. Legal Educ. 21 (1935).Google Scholar

22 ABA annual reports for the years 1922-24, in volumes 47-49 of the ABA Reports; 52 ABA Reports 112, 340 (1927); and 53 ABA Reports 451-53 (1928). Inspections were conducted only on request of the law schools.Google Scholar

23 Stevens, supra note 5, at 503.Google Scholar

24 Sullivan, supra note 2, at 419.Google Scholar

25 63 ABA Reports 161-62 (1938).Google Scholar

26 Originally, the official publication contained an interpretation after each standard. In 1973, when the standards were most recently completely revised, these interpretations were deleted. Thus, the actual meanings of the standards were no longer ascertainable from their language alone. Not until 1977 were the interpretations of the standards compiled separately, and they were not scheduled to be routinely distributed with the standards until 1978. See ABA Standards for Legal Education (1973).Google Scholar

27 Thirteen of these states specifically required graduation from an ABA-accredited law school: Arizona, Florida, Indiana, Kentucky, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, Ohio, South Dakota, and West Virginia. Two of the states, Oklahoma and Tennessee, required graduation from an ABA-accredited law school but also had provisions on their books that allowed the state to accredit law schools for bar examination purposes. Three of the states, Colorado, Iowa, and Utah, required graduation from an accredited law school without specifically mentioning ABA accreditation. 1956 Rev. Legal Educ. The seven states that effectively required graduation from an ABA-accredited law school were Alabama, Connecticut, Kansas, Louisiana, North Carolina, Wisconsin, and Wyoming. See Tinnelly, supra note 5, at 21 n.6.Google Scholar

28 Milton Friedman, Capitalism and Freedom 153 (Chicago: University of Chicago Press, 1962).Google Scholar

29 Id.Google Scholar

30 Eugene Musselman, director of membership, ABA, personal communication (1978). In 1967, the United States had an estimated 265,823 lawyers, 125,028 of whom were members of the ABA. The association has no earlier estimates of total number of lawyers in the nation.Google Scholar

31 Twenty-six of these states specifically required graduation from an ABA-accredited law school: Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Pennsylvania, South Dakota, West Virginia, and Wisconsin. Six of the states required graduation from an ABA-accredited law school but also had provisions on their books that allowed the state to accredit law schools for bar examination purposes: Connecticut, Massachusetts, Oklahoma, Oregon, South Carolina, and Tennessee. Four of the states required graduation from an accredited law school, without specifically mentioning ABA accreditation: Iowa, Kansas, Rhode Island, and Utah. 1976 Rev. Legal Educ.Google Scholar

32 Alabama, Maine, Michigan, New York, North Carolina, Texas, Virginia, Washington, and Wyoming.Google Scholar

33 In the survey described in note 50 infra, state bar committees were asked whether graduates of unaccredited (non-ABA) law schools who had already been admitted elsewhere were eligible for ad-mission to the bar as attorneys rather than as new graduates. The results indicated that almost all states would allow graduates of at least some unaccredited law schools to become members of their bars once they had been admitted elsewhere and had practiced for a specified period of time. See note 50 infra.Google Scholar

34 See 52 ABA Reports 340, item 2 (1927); and 46 ABA Reports 679-88 (1921).Google Scholar

35 46 ABA Reports 687-88 (1921); see standard (d) at 688.Google Scholar

36 Most part-time law schools were unaccredited because they were proprietary institutions. See p. 527 infra.Google Scholar

37 The 8 part-time law schools that had added full-time divisions shortly before becoming ac-credited were University of Baltimore School of Law; Detroit College of Law; Duquesne University School of Law; Lewis and Clark College, Northwestern School of Law; McGeorge School of Law, University of the Pacific; Memphis State University School of Law; University of San Diego School of Law; and Western New England College School of Law. The 11 part-time law schools that added full-time divisions after becoming accredited were University of Akron, C. Blake McDowell Law Center; Capital University Law School; Cleveland State University, Cleveland-Marshall College of Law; Golden Gate University School of Law; Gonzaga University School of Law; John Marshall Law School; Northern Kentucky University, Salmon P. Chase College of Law; Oklahoma City University Law School; University of Toledo College of Law; University of Tulsa College of Law; and Wayne State University Law School.Google Scholar

It should be noted that at least six schools that were full-time law schools when accredited subsequently added part-time divisions: Catholic University of America School of Law; University of Louisville School of Law; University of Miami School of Law; Rutgers, The State University School of Law, Camden; and Rutgers, The State University of New Jersey School of Law, Newark; and University of Santa Clara School of Law. See ABA's Review of Legal Education for the years 1935-76.Google Scholar

38 This figure is considerably higher than the 10 percent estimated by Kelso in 1971. Kelso knew his figure was low because of nonreporting. See Kelso, supra note 5, at 4. The following tabulation gives statistics on law school enrollment:Google Scholar

These figures do not include law students pursuing a graduate degree or those enrolled in law schools in Puerto Rico. The figures do not correspond exactly to those in 1975 Rev. Legal Educ. 41; the sums in that table are incorrect.Google Scholar

39 Address of William Draper Lewis, chairman, section of Legal Education and Admissions to the Bar, 54 ABA Rep. 669 (1929).Google Scholar

40 54 ABA Reports 658-63 (1929).Google Scholar

41 In the 1920s, Alfred Reed classified such law schools as Golden Gate University School of Law, John Marshall Law School, Southwestern University School of Law, Chicago-Kent College of Law (now part of Illinois Institute of Technology), and Suffolk University Law School as proprietary. Reed, supra note 16, at 94-96. Today all of these are nonproprietary institutions ac-credited by the ABA.Google Scholar

The difference between proprietary and nonproprietary law schools is not simply a matter of the former being for profit and the latter being nonprofit, for both types of institutions may yield a profit (i.e., more income than is necessary to cover expenses). The distinction is based on the disposition of the profit. If the profit goes or could go directly to private individuals, the school is proprietary. If the profit stays in the law school or goes to the university with which it is affiliated, the school is nonproprietary.Google Scholar

42 Reed, supra note 16, at 94.CrossRefGoogle Scholar

43 Figures on proprietary law schools in 1926 were taken from id. at 405-513 passim; the total enrollment figure for the same year was taken from id. at 529.Google Scholar

44 Id. at 100.Google Scholar

45 Id. at 94, 120.Google Scholar

46 Reed, supra note 16, at 94-96.CrossRefGoogle Scholar

47 1975 Rev. Legal Educ.; 1976 Rev. Legal Educ.Google Scholar

48 See notes 31 and 32 supra.Google Scholar

49 1975 Rev. Legal Educ.; 1976 Rev. Legal Educ.Google Scholar

50 In spring 1975, one graduate of an unaccredited law school in California surveyed bar committees in all states and the District of Columbia in order to determine which jurisdictions would permit him to take the bar examination. The results of his survey indicated that Mississippi, Indiana, and Vermont (the latter after a six-month clerkship) would allow graduates of at least some out-of-state law schools that were not accredited by the ABA to take their bar examinations. See David Dickerson, Graduation from Non-ABA Approved Law School: Its Effect on Ability to Practice Outside California, L.A. Daily J., Apr. 23, 1976, at 2. Statistics published by the National Conference of Bar Examiners on the number of graduates of unaccredited law schools who were actually admitted to bars by examination after 1965 showed that Mississippi had admitted many such graduates, Vermont had admitted only one, and Indiana had admitted none. See numbers 5 and 6 of volumes 34, 37-44 of the Bar Examiner (for the years 1966, 1969-76) and numbers 3 and 4 of volumes 35 and 36 (1967, 1968).Google Scholar

51 See note 33 supra.Google Scholar

52 In 1977 the Missouri Institute of Law and the La Clede School of Law were established as for-profit corporations. Both are located in Missouri, where only graduates of ABA-accredited schools are eligible for admission to the bar as original applicants.Google Scholar

53 ABA Standards for Legal Education v-vii, 1-2 (1973).Google Scholar

54 Here “quality” is used to refer only to the notion that the ABA standards reflect the con-sensual definition of minimal quality at a given time and that any law school meeting ABA standards is in that sense a quality institution. See Standard 103, ABA Standards for Legal Education 1 (1973).Google Scholar

55 Standards 402, 602, id. at 11, 17.Google Scholar

56 Standard 202, id. at 3. Prior to 1973, the term “commercial enterprise” was used instead of “private profit.”Google Scholar

57 Lewis's addresses, 53 ABA Reports 625-32 (1928), 54 ABA Reports 668-69 (1929); and Reed, supra note 16, at 99-104.Google Scholar

58 In June 1977, the ABA suspended Standard 202 for a two-year period. Any proprietary law school which meets all the ABA standards except Standard 202 and a related clause of Standard 203 and which applies for accreditation before June 1979 will be accredited; if any proprietary school applies and is accredited, the Council of the ABA section of Legal Education and Admissions to the Bar will recommend that the ABA House of Delegates repeal Standard 202. If no proprietary law school that complies with the other standards applies for accreditation before the deadline, Standard 202 will remain in effect. As of September 1978, no proprietary law school had yet applied for accreditation.Google Scholar

59 The distinction between proprietary and nonproprietary schools was not based on the technical differences in corporate structure between profit and nonprofit corporations but rather on the nature of the real financial interests in the schools, so far as they could be determined. Hence, a nonprofit corporation could be classified as proprietary, and some were.Google Scholar

60 In 1976 there were 53 unaccredited law schools from which a sample for this study could be selected. At the time of the study, 7 of these schools claimed to be actively seeking ABA accreditation. They were eliminated from the population because of the possible confounding effects of the ABA standards with which they were attempting to comply in a comparison of proprietary and nonproprietary law schools (see pp. 532-33 infra for further explanation). This left a population of 46 similarly situated unaccredited law schools (both proprietary and nonproprietary) from which to select a sample. None of these schools had ever sought accreditation. Of the 7 unaccredited schools that were omitted from the population, 2 have since been accredited by the ABA, and 3 have been inspected for possible accreditation.Google Scholar

61 The law schools were similarly situated with respect to the ABA and the ABA accreditation standards in that no school in either group had ever sought ABA accreditation. See note 60 supra for further explanation.Google Scholar

62 This portion of the study was conducted between September and December 1976. A severe time limitation on the study precluded pretesting of the interview schedule in the field.Google Scholar

63 The term “part-time law school” used throughout this paper refers to schools in which the students are part time. The type of faculty (full time or part time) had no bearing on whether a school was classified as part time, full time, or multiple division.Google Scholar

64 Sixteen of the 22 unaccredited nonproprietary law schools in existence in 1976 had never sought ABA accreditation. Seven of these schools participated in this study. When asked why they had not sought accreditation or why they were not actively seeking it, most of them replied that an ABA-approved library and full-time faculty were too costly. Many of these schools were close to public law libraries and felt no need to purchase their own. Furthermore, many of these part-time schools felt that a sizable full-time faculty was an extravagance. As one dean put it, “We feel no need to be like Harvard.”Google Scholar

65 These conclusions were based on responses to the following basic questions: What system of grading do you use? Are exams graded anonymously? Do you dismiss students for scholastic deficiency? Do you place students on scholastic probation? Do you impose a sanction upon a student who has excessive absences in a given course? Do you accept credit earned for correspondence courses? Do you permit a person to transfer credits earned at another school toward a degree at your school? Do you admit students who have been disqualified because of low grades at another school? Does the law school advertise? Does the law school have a recruitment program? In addition, information on the number of transfer students and the number of students dismissed was obtained from all but one school in the sample.Google Scholar

66 This conclusion was based on responses made to the following basic questions: How many hours of credit are required to earn a degree? How many of these hours are for required courses? Which courses are required? What are the maximum, minimum, and standard course loads (in credit hours per week) for your full-time and part-time students? What is the minimum period in which a J.D./LL.B. can be earned? What is the maximum period in which a J.D./LL.B. can be earned? How many classroom minutes do you require per student credit hour for your full-time and your part-time program? How many weeks of classes (including examination periods) are required each academic year? How many weeks (counting class and examination periods) must a student be in residence to earn a law degree?Google Scholar

67 Between 1948 and 1975, the national percentile ranking of a 525 LSAT score dropped from the sixty-seventh to the forty-ninth percentile, even though theoretically the score reflects the same individual ability over the years (information provided by Dr. Robert Wiltsey, Program Director for LSAT, Educational Testing Service, Princeton, New Jersey). Thus, an LSAT score that is considered inferior today would have been quite respectable only a few years ago.Google Scholar

68 In computing these student-faculty ratios, one part-time student was considered to be equivalent to three-fourths of a full-time student. Full-time teachers were considered to be full-time faculty members. Part-time teachers were converted to equivalent full-time faculty members on the basis of an average yearly teaching-hour load of 12 semester hours for full-time faculty members. For example, a part-time teacher who taught at a school where the average teaching-hour load per year was 6 semester hours was equivalent to one-half of a full-time faculty member. Those members of a law school staff who were listed as having no teaching responsiblities were not included in the student-faculty ratios.Google Scholar

69 These figures were calculated by dividing the total law school enrollment into the number recorded in response to the following question: Are there study spaces (carrels, chairs at tables, etc.) in the library for students? If so, how many?Google Scholar

70 The bar examination statistics presented in this paragraph are for first-time takers of bar examinations only. For purposes of computing these statistics, summer was considered to be the months of June, July, and August.Google Scholar

71 The bar examination statistics presented in this paragraph are only for people who took the California bar examination during 1973-75 and passed it on the first attempt.Google Scholar

72 The reader is reminded that one difference in admissions policies was noted between proprietary and unaccredited nonproprietary law schools (see table 5 and accompanying text). This difference did not appear, however, to result in the schools' admitting noticeably different types of students (judging from LSAT scores and GPA'S) or percentages of students. No marked differences were noted in other admissions policies regarding such things as time of admission, transfers, and so forth.Google Scholar

73 Note that in this study when one controlled for the geographic location of a law school one was also controlling for the age of a law school. Eight of the 10 California law schools in the sample were less than 15 years old, while 6 of the 8 southern law schools were more than 40 years old.Google Scholar

74 ABA Standards for Legal Education v (1973).Google Scholar

75 Tinnelly, supra note 5, at 21.Google Scholar

76 Twenty-five years ago, Harno noted that the ABA standards stressed “quantity” not “quality” legal education. See Harno, supra note 5, at 164. See also Albert P. Blaustein & Charles O. Porter, The American Lawyer 181 (Chicago: University of Chicago Press, 1954). As noted previously, the nature of the ABA standards has changed very little over the years.Google Scholar