On Thursday, the Maine SJC denied Husson University's application to circumvent the Maine Bar Admission rule requiring graduation from an ABA accredited law school to be eligible to take the Maine Bar exam – In re Petition of Husson University School of Law, SCJ-242, http://www.courts.state.me.us/court_info/opinions/supreme/index.shtml#mostrecent The SJC declined Husson's invitation set pre-approval standards before the Husson School of Law was in operation, or to set forth alternative criteria to be administered outside the ABA framework, so Husson would not need to obtain ABA accreditation to ensure that its students would be eligible to practice in Maine.
The SJC really had no other practical option – it simply lacks the time and resources to create its own non-ABA accreditation system. This means, as I understand it, that Husson will need to start operations without any guarantees and seek ABA accreditation. One sticking point seems to be tenure – while currently being debated, the ABA requires a certain portion of the school's teachers to be tenured or on a tenure track, while Husson doesn't grant tenure. It will be interesting to see what Husson will do. It could start operating, without tenured professors, apply for ABA accreditation, and see what happens in the next few years – either the ABA could change its mind and excise the requirement, or perhaps if the ABA ruled that Husson met all of its criteria but tenure, Husson could go back to the SJC and seek relief. But that would require a lot of faith on the part of the students that their three years of study would not be for naught.
Is this fair? On the one hand, some would say that having teachers be tenured doesn't seem to be a critical requirement to produce competent lawyers. Indeed, haven't we all encountered the tenured "lifer" professor who last updated his course outline when the Rule in Shelley's Case was new and has no incentive to improve his teaching? And one goal of the Husson school is to try to keep costs down so that less wealthy candidates can become lawyers and serve the northern half of the State. Certainly the high cost of law school is a serious problem, freighting students with crippling loans that reduce their job options (and in a current economy where the options aren't quite as rosy as they used to be).
On the other hand, some would say that tenure may not be required if you treat lawyering like other skills such as learning to dance the rhumba or play the guitar, but admission to the bar can put other people's lives literally in your hands, so maybe a little more is involved. And tenure isn't really the issue in itself – rather, tenure acts as a proxy for a certain quality of education generally. It also appears that Husson might not want to meet the ABA's library criteria. More broadly, the value of ABA accreditation isn't really meeting each and every substantive ABA criterion, but meeting those standards as applied by the ABA. The ABA's accreditation criteria are fairly straightforward and intuitive. If you compare them to California's, for example — the only separate accreditation standards I'm aware of — they are practically the same. The key is having competent and experienced evaluators applying those standards. No one in Maine has that capability, again making the SJC's decision here fairly self-evident — again without belittling the laudatory goals articulated Husson.
The current system for making lawyers is certainly imperfect and we should welcome action to think outside the box and try something new. But ensuring minimum competency is critical given what's at stake. While one could certainly posit creation of lawyers without tenure or other ABA requirements on an individual basis (I'm pretty sure Lincoln didn't have any tenured professors teaching him and he turned out ok), we don't have the luxury of individualization of the profession they had back in the Eighteenth Century. And if we did use that kind of approach, the exposure to subjectivity and discrimination and other problems would be manifest. (In some countries, being admitted to the bar requires an oral exam by a local lawyer. I have been told that in practice, unsurprisingly, this leads to "who you know" results as opposed to a fair test of competency).
I hope Husson – or someone else – figures out a way to make law school more affordable, and to get legal services to the folks up north who need it. But trying to invent an entirely separate Maine set of accreditation criteria is simply not a workable avenue for achieving those goals.