The Case For (and Against) ABA Regulation of Non-J.D. Programs

54 Pages Posted: 25 Sep 2023

See all articles by Benjamin H. Barton

Benjamin H. Barton

University of Tennessee College of Law

Date Written: September 9, 2023

Abstract

American law schools have pulled out of what looked like a death spiral. From 2008-18 job placement and bar passage cratered and applications and JD enrolment followed. Some law schools found themselves trapped between Scylla and Charybdis – if they did not loosen admissions, they would not have the funds to keep the doors open. But if they loosened admissions too much bar passage and placement suffered, prompting a possible closure via disaccreditation by the ABA (or the DOE).

There are (broadly speaking) two models of profitable higher education in the United States. The first is the old school, classic model of providing value for tuition in terms of improved job and life prospects. Most American law schools have always operated in this fashion. The other is the student loan “scam” model, where students who have little chance of getting good value for their tuition are confused into borrowing a massive amount of non-dischargeable federal loans that are paid directly to the school. The worst American law schools definitely ran on this model from 2008-18.

In the last ten years 13 law schools (or branches of law schools) have closed or merged and the ABA took regulatory action against many, many more. As a result, the worst offenders have either changed their ways, closed voluntarily, or been disaccredited. The remaining JD programs are as strong as they have ever been. Bar passage is not fully back but is improving. Job placement is the best it has been since the 1990s. Applications and enrollment have ticked up, but not at the price of admitting students who are very unlikely to pass the bar or gain legal employment. Tuition and debt levels have slowed their meteoric rise. I pilloried America’s law schools in my 2019 book Fixing Law Schools, and I am very happy to report that JD programs have made a lot of progress.

Nevertheless, financial pressures remain, and law schools have turned aggressively to other revenue sources, especially what the ABA calls “non-JD programs.” Non-JD enrollment in American law schools hit an all-time high of 24,158 in 2022. There were just 7,667 such students in 2006 before the great recession and recent law school struggles, meaning that there has been a 215% increase in these students in the last two decades. Non-JD students have not just grown in absolute numbers, they have also become a much larger percentage of total enrollment at American law schools. In 2006, non-JD enrollment was just 5% of total enrollment. In 2022, it shot up to 17%, a 240% increase.

The ABA very pointedly does not regulate these programs, and the available evidence suggests that while some of these programs operate on the old school model of value for tuition, some likely do not, especially online masters programs. Online masters programs are the fastest growing segment of higher education generally and law schools are hardly alone in operating programs of questionable value in terms of employment results/learning outcomes versus tuition/debt levels. Nevertheless, it is not good news for law schools to fix their JD programs on the backs of new online masters programs that recreate some of the worst behavior in the JD programs.

This article presents data to support concern with the explosive growth in non-JD programs and then presents the case for and against having the ABA take over the regulation of such programs.

Keywords: Legal education, legal profession, legal ethics

Suggested Citation

Barton, Benjamin H., The Case For (and Against) ABA Regulation of Non-J.D. Programs (September 9, 2023). University of Pittsburgh Law Review, Vol. 85, No. 3, 2024, University of Tennessee Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4566908

Benjamin H. Barton (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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