When London Mayor Ken Livingstone proposed a charge on traffic in central London there were predictions that it would cause chaos at the margins of the charge area and fail to deal with the underlying problems. The objections were neither wholly irrational nor completely unreasonable, but as it has turned out, most people would now say that it has been a success because the scheme was made to work.
The same might be said of the debate about how much influence the legal profession in England and Wales should have over law degree courses. It would be possible for a system to be constructed in such a way that high-handed professional bodies, divorced from the broader aims of a university course, could dictate the curriculum in a way that most academics, and even students, might find objectionable. However, before accepting this as the inevitable outcome of professional accreditation it might be worth reflecting on the US experience.
From the time of its foundation in 1878, the American Bar Association has actively sought to influence standards of legal education and currently there are some 181 law schools in the US that are fully approved by the ABA. The encouragement for a law school to seek such accreditation is that 43 of the 50 states require students to graduate from an ABA approved law school in order to take the state bar examination. In addition, some 165 schools belong to the Association of American Law Schools (AALS), which is an organisation that maintains a close working relationship with the ABA.
ABA works by laying down standards against which law schools are measured. For example, standard 201 states that “the present and anticipated financial resources of a law school shall be adequate to sustain a sound programme of legal education”. Standard 405 requires that “a law school shall establish and maintain conditions adequate to attract and retain a competent faculty”. Standard 601 mandates that a law library “shall have sufficient financial resources to support the law school's teaching, research and service programmes” and that “a law school shall keep abreast of contemporary technology and adopt it when necessary.”
It would be difficult to find anyone who could object to principles such as these being rigorously applied to English legal education. There is, however, comparatively little intrusion into the details of the curriculum. Standard 302 requires that students receive a rigorous writing experience, instruction in professional conduct and an opportunity for instruction in professional skills. It would be hard to argue that this is anything other than exposure to what
any law school would seek to achieve, nor could it be said that such general guidance stifles diversity or experimentation in the curriculum.
Law schools are inspected every seven years by a site team which spends several days at the institution after reviewing previously disclosed documentation. Typically, the team consists of five to seven members led by an experienced site evaluator. It would not be unusual for one member of the team to be a judge or practitioner, but the majority of the group would be experienced legal educators, such as law school deans, administrators and librarians from other law schools. This varied composition reduces the risk that the team will be completely dominated by practitioners. Some 30 site teams are appointed annually from those volunteering to carry out evaluations, which itself encourages interchange between universities and a spread of ideas.
The crucial question is whether US legal education has benefited from the regime of ABA accreditation and the question is not without controversy in the US. Some would argue that the increased resources required have increased the cost of tuition, but a majority of legal educators would say that it has had a significant effect in increasing the resources allocated to law schools. A university faced with a negative ABA report is almost inevitably obliged to move resources to its law school. It is rather ironic that one of the criticisms sometimes made of ABA accreditation is that it requires increased expenditure by institutions to: accommodate extensive use of full-time staff; limit the administrative duties imposed upon them; provide large, well-staffed law libraries; provide adequate space; and ensure that staff are adequately paid. This is the sort of problem most English law school heads of department would be happy to have their institutions face. There is an argument that just because law has a more powerful union, than, say, classics, it should not be supplied with better resources. On the other hand, the legal education in England has had a tendency to use law schools as a cheap way to subsidise other departments. Perhaps the special, and by no means fanciful, risk of law being under resourced in this way underlines the need for an overdue mechanism for its correction.
A quality legal education does not, nor should it, come cheap. One of the factors that might put some of the recent debate about student fees into perspective is that the annual fees to study law at a prestigious private university in the US might well be in the region of $28,000 (£17,100) per year. But it would be wrong to think that all, or most, law schools in the US are only able to provide the facilities they do because of fee levels that would currently be unthinkable in the UK. At a state university, although there is considerable variation between the states, the fees might well be closer to something like $9,000 (£5,500). This still supports a viable law programme that would be the envy of most of its English equivalents.
Anyone who has ever had the opportunity to teach in a US law school can hardly have failed to notice the disparity between resources available even in a state law school as compared with many universities in the UK. Even allowing for other factors, such as competition and economic conditions, it is deeply improbable that the quality of US legal education would have improved as greatly as it has in the last 30 years if it were not for the ABA's active involvement in education. Before universities here reject too quickly the idea of greater participation by professional bodies in legal education, they might want to reflect on what splendid isolation has so far achieved.
Geoffrey Bennett is a professor at Notre Dame University