Author: Daniel Rodriguez

Because the decision is not final and therefore the case lacks the jurisdictional requisites for the Court to hear the appeal now.

This is what Prof. Adam Sopko (U Colorado) and I argue in this amicus brief submitted yesterday on our behalf to SCOTUS. The summary of the argument is this:

“To preserve the vital interest of comity between the state and federal systems, several limits govern this Court’s authority to review decisions from state courts, including that such decisions be “final judgments.” 28 U.S.C. § 1257(a). States have enjoyed “wide discretion in respect to establishing [their] systems of courts and distributing their jurisdiction.” Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 81 (1930). State courts have developed practices that are in some ways familiar and others entirely foreign to their Article III counterparts. To respect these features of state prerogatives, the Court has long looked to state courts’ understanding of their own procedures and jurisdiction to determine whether a state-court judgment is “final.”

Petitioners’ finality argument relies on viewing the judgment below as a stand-alone proceeding, rather than an interlocutory appeal, and thus controlled by Atlantic Richfield. The Court’s decision there, like some earlier cases, recognized state high court decisions resolving certain independent proceedings as final. Montana’s supervisory writs, like the other extraordinary writs animating these cases, are original remedies issued by supreme courts against inferior tribunals to enjoin ultra vires acts. Petitioners’ argument, then, rests on the premise that Colorado’s Rule 21 creates an original remedy that issues to rein in unlawful judicial acts. That premise is wrong. First, Petitioners overlook the Colorado Supreme Court’s revisions to Rule 21 nearly 30 years ago to implement its supervisory power, a source of authority common to state courts with no federal counterpart. Using this power, the court grants review of novel issues and cases of significant public importance that are not ultra vires. Thus, unlike the formal extraordinary remedies that run against judges, as in Atlantic Richfield, Rule 21 simply allows expedited appellate review. Second, while the Colorado Supreme Court can and does issue extraordinary relief like prohibition and mandamus under Rule 21, it requires specific pleading to do so that Petitioners did not provide. Colo. App. R. 21(e)(1). Instead, Petitioners framed the case as one of significant public importance and one warranting expedited review, not an extraordinary remedy against a judge. Third, Petitioners’ other arguments attempting to frame Rule 21 as an original, standalone proceeding only undermine their theory. They emphasize Rule 21’s automatic stay provision without noting that the state’s rule governing interlocutory appeals uses the same language. And they make much of the use of the “original proceeding” label in Rule 21. But in Colorado, jurisdiction does not fall into the binary their argument requires. The finality inquiry turns on the Colorado Supreme Court’s own understanding of its jurisdiction and procedures. Pet. Br. 18. Viewed on its own terms, the judgment below was not final and thus beyond this Court’s jurisdiction. Deciding this case before a final judgment is not only imprudent, because it requires this Court’s premature intervention, but, more seriously, disruptive of the comity and collaboration that undergirds the final judgment rule’s key federalism values. As with other limits on this Court’s review, a coherent scheme of jurisdiction—including not just “whether” but also “when”—protects the interests of states by assuring that state courts can perform their essential functions under their state constitutions.

This Court has long ensured that state judicial procedures and the overall architecture of state procedure will be vouchsafed as an essential element of our constitutional federalism structure. Here Colorado has a well-established process for judicial decision-making and review, embodied in Rule 21. Asserting jurisdiction now interferes with this authority, with consequences not only for Colorado and its supreme court practice, but for the values of federalism long recognized by this Court.”

Why is this argument important to make and important for the Justices to consider? Because state constitutions are critical instruments in our constitutional system to design and structure our state courts and their procedures. It is fully consistent with our commitment to federal supremacy in matters of federal law to mandate that the Supreme Court fully respect state judicial procedures and to exercise its jurisdictional authority consistent with the constitutional architecture of state processes. This is not a new insight, but one that undergirds the relationship between federal and state courts and, more generally, the system of federalism embodied in our constitutional framework.

Law firms have been turning of late to management service organizations (MSOs) to assist with myriad business activities. Moreover, they see MSOs as a mechanism for drawing in private equity to support the bottom line and support growth strategies. MSOs have long been used in the health care industry for these purposes, and so the playbook is taken from this big sector. The legal sector present issues distinct from health care, however. This is so as a regulatory matter because of the longstanding ethics rule — the ABA’s Model Rule 5.4 to be exact — which, to the extent that it has been incorporated by state courts into the regulation of lawyer conduct, might have consequences for the use of MSOs. I say equivocally “might have consequences” because it is not at all clear that law firm engagement of MSOs for various management functions, some very important, others more mundane, represents nonlawyer ownership or, further, runs the risk of prohibited fee-sharing. (Indeed, I will say more directly, even though this is largely beside the point of this post, that the argument that 5.4 restricts MSOs strikes me as rather dubious).

In any event, a few states are deeply worried about these developments and have proposed significant regulation to restrict greatly outside private investment in law firms. Private equity and hedge funds are the target of this legislation, and the stated reasons are (as with the classic arguments for the maintenance of Rule 5.4) that such investments threaten the independence of legal judgment and the fiduciary duties of lawyers to clients. Why now? Largely because of the expanded use of MSOs and the credible view that such arrangements include incentives and opportunities to raise external money for law firms.

There is much to say about the merits of Rule 5.4 and the persistence of that this rule in the face of law firm financial pressures and, as well, concerns about regulatory impediments that contribute to the access to justice crisis. The ABA has been adamant about maintaining this rule, even though many other countries do not similarly restrict law firms and, critically, a couple of states — Arizona and Utah — have recently been experimenting with alternative business structures that are inconsistent with 5.4. But my focus here is not on this important debate about the virtues of vices of this regulatory edifice, but on some of the interesting state constitutional issues that this proposed legislation from Illinois, California, Colorado, and maybe other states raises.

Lawyer ethics rules have traditionally been developed and codified by the actions of state courts. The state supreme courts act under the authority of what is called “inherent powers,” a principle that are its core reflects the prerogatives and obligations of courts to deal with matters pertaining to lawyers as officers of the court. These inherent powers include myriad elements of legal services regulation and also the organization and functions of the state courts, but they have long included matters of lawyer qualifications and, as well, lawyer ethics. The history of the inherent powers doctrine is at once opaque and under theorized. It comes to modern times from the deeply embedded idea that all things pertaining to lawyers and legal practice derive from the essential obligations of the courts to ensure that the justice system operates successfully and consistent with the rule of law. As a practical matter, inherent powers doctrine not only undergirds the broad powers courts have to configure the rules of, inter alia, lawyers’ professional responsibilities, but also protects the judiciary’s powers from intrusions from non-judicial institutions including the legislature.

Pause for a moment to consider how consequential is this idea. State regulation is by and large organized under the rubric of the states’ police power, a topic I have explored in considerable depth in a recent book, Good Governing: The Power Power of the American States (Cambridge U. Press 2024). This power is a legislative power, grounded in state constitutions, whether explicitly or implicitly as a foundational aspect of state constitutionalism in the United States. But the inherent powers doctrine effectively hives off regulatory matters pertaining to lawyers and the justice system, and allocates all key powers to the judiciary. Furthermore, it creates a bulwark between what would otherwise be the prerogative of legislatures to act, so long as consistent with the state and federal constitutions, to regulate legal services in order to protect the public health, safety, and general welfare of the state’s people and the discretion of the judiciary to make decisions involving lawyers, based upon criteria that they develop in their own discretion. To be sure, inherent powers flow from the state constitution and are not necessarily unlimited. And yet these limits cannot be set by ordinary legislative action, but only by the delineation of constitutional responsibilities, responsibilities whose content and definition will usually be adjudicated by judges.

This discussion has proceeded largely on the basis of first principles, and a deeper analysis of inherent powers doctrine would consider state constitutional law cases that have involved assertions of and challenges to these powers. But it is critical to note that the “bulkwark” idea, one that is best viewed as an element of the state’s separation of powers, is well embodied in state constitutional law. Indeed, it is no coincidence that state legislation dealing with legal services remains rare; and legislation that deals with the content of lawyer ethics is rarer still. (The most common of such statutes are those dealing with lawyer solicitation and unauthorized practice of law, neither of which are about legal ethics and conflicts as such).

So where does this leave the current crop of legislation that deals with nonlawyer investment in law firms? On shaky constitutional grounds, I would suggest. State ethics rules that basically codify Rule 5.4 might or might take care of the situation of MSO engagement with law firms. Certainly the impetus behind this proposed legislation suggests that current ethics rules are lacking in this respect. But if and insofar as the state judiciary is unwilling to expand measurably the scope of 5.4 to include activities of MSOs, this may leave this anti-MSO legislation in some serious constitutional peril.

To come at this issue from a different direction, it might be precisely this burgeoning legislative movement (whether wise or unwise, and I confess that I tend to think the latter) that puts pressure on state courts to rethink their classic commitment to the inherent powers doctrine, as it pertains to regulatory innovations such as these. Exactly how they might do so, under existing doctrine and with an eye toward the trend of creative, modern approaches to legal services regulation — what I have called “Nextgen bar regulation” — is an important question, but one beyond this particular post. More on that later. For now, it is enough to note that the Illinois, Colorado, and California are picking at a state constitutional hornet’s nest.

[Reprinted from my Substack. Daniel. B. Rodriguez. Subscribe for free!]

Three interesting takeways from this law professor about the report issued last week, this with the blessing of two leading university leaders: Chancellors Daniel Diermeier of Vanderbilt and Andrew Martin of Washington University. Beginning with the caveat that a truly informed assessment of the committee’s evaluation of academic humanities’ present state is beyond my ken, as none of these are my academic fields, the report nonetheless warrants readings from professors outside of the fields covered, including law.

First takeaway is about the merits: The report examines in deep detail the incredible echo chambers that plague scholarly inquiry in a wide range of important fields, including, inter alia, English, History, and Philosophy. The stories about exclusionary practices in departments and journals are unnerving; and certainly the report authors come with receipts. The concerns about the lack of ideological diversity is not, on its face, a new story, but the through-line in this report is from a strongly slated group of established academics, empowered actively and/or passively by senior colleagues and department leaders to decisions that stymie the objectivity pursuit of knowledge and undermine the larger objectives of the university as a place for rigorous examination of facts and the development of research that aspires to truth. To this reader at least, the report was scrupulously careful not to impugn professors who are staunch liberals and avowed activists, but has as its target decisionmaking that is not truth-seeking, and not fundamentally fair to those of heterodox views.

Notably, the report objects at various junctures to the current Right-wing war on universities, and is brave in naming names. It is only if the report is taken wholly out of context that one could draw the conclusion that the problems in academic humanities warrants threats to academic freedom and to the essential prerogative of university faculty and leadership to tackle their own festering problems without the need for purposive grand-standing by conservatives who do not share the values of the modern university and would blow up the whole enterprise.

So one takeaway, and perhaps the most ordinary one is that this report is really valuable as a fair-minded assessment, pointing to some good ideas for reform, and for that reason alone, is should be required reading for those who care about the present and future of academic research.

Second, reading this report through the lens of a legal academic, I can recognize some of the same unfortunate practices in our field. The lack of viewpoint diversity is a problem in our field. This results in exclusions of different opinions and perspectives; and also undermines the truth-seeking functions of academic research in and around the areas of law. To be sure, the issues can be different that in other fields, given that much of work can be described as advocacy work, at least at some level of generality. Urging courts to take one or another path draws on not only analysis that can be subject to more objective criteria, and so is about fact-finding and the pursuit of truth, but also conspicuous is the (informed) opinions of the authors, and, yes, their normative priors. But there is still a fundamental problem if scholarly inquiry that draws upon perspectives and methods that are unconventional or popular is not only disfavored, but crowded out of the conversation. While this report doesn’t touch academic law, I couldn’t help in reading this report to want one or more blue ribbon committees charged with the task of investigating practices in academic law. I suspect that such reports would generate valuable conversation and would, one hopes, move the needle, a needle currently stuck in the groove marked by a combination of complacency among those are comfortable with the status quo and those who relentlessly attack law schools for being too progressive and would prefer academia’s flaws to be adjudicated in the federal courts and before receptive trustees, and perhaps ultimately in blue and purple state legislatures.

A fresh look at academic law is important for a particular reason as well: We are teaching and training the next generation of lawyers, and future lawyers need to be exposed to an eclectic and diverse set of viewpoints and perspectives, this in the classroom, in practice settings, and in scholarly venues. Viewpoint diversity is important throughout the wider academic world; but it is arguably essential in law schools, where the absence of viewpoint diversity and, worse yet, the purposive exclusion of alternative, unpopular views would result in serious deficits in the education that lawyers need to practice and lead in a world that requires full understanding of multiple views and the ability to influence judges, legislators, and administrators (here speaking principally of litigation and advocacy work) who hold different views and opinions.

A final takeaway: It is quite interesting that this report comes to the marketplace of ideas as a result of the agenda of two prominent college presidents. Moreover, these are not any two presidents, but, in Martin and Diermeier, two who have been associated with a more critical perspective on contemporary university ideologies and practices and, largely for that reason, have been seen as more tolerant of some of the Trump administration’s attacks on universities. I am skeptical of the narrative that either of these presidents are MAGA-friendly in some way. Indeed, both have spoken up on behalf of the integrity of universities in the face of external threats and, further, are strong voices for both institutional neutrality and academic freedom. Nonetheless, that the basic fact that these two leaders are the ones responsible for sending this report out with their blessing will be eyebrow-raising, at least in the inside baseball world of academia. It will be interesting to see whether other university leaders will hop on board this nascent movement — I’ll call it a movement that champions deep institutional self-reflection about the problem with modern humanities — and undertakes strategies of change. I hope that this happens, but this hope is accompanied by an appreciation of the complex character of university decisionmaking and internal faculty politics.

[reprinted from my Substack, Daniel B. Rodriguez. Subscribe for free!]

The movement toward robust state constitutional review — sometimes called, if a bit imprecisely, independent state constitutional interpretation — began in earnest with the important advocacy of the late Justice William Brennan in his seminal 1970’s article in the Harvard Law Review. This built, of course, on an edifice set by imaginative state supreme court jurists, most of whom are scarcely remembered by mainstream constitutional law theory, much less our students. And yet for those of us who have long toiled in the fields of state constitutional law and theory, we remember that the effort to build a truly original and impactful state constitutionalism, for the benefit of our larger constitutionalism project in the United States, has been cooking on high heat for a half century’s time.

Those of us in the cognoscenti also recognize that the appeal of independent state constitutional interpretation often tracks partisan political efforts. In the latter part of the 20th century and into our new century, independent interpretation has often invoked to protect individual rights, especially free speech and equality The protection of same sex marriage, for example, began with some progressive state supreme courts, as did the later the efforts to protect property rights after Kelo. The current turn toward state constitutional law owes much to the Supreme Court’s decision in Dobbs. After this decision, left-leaning organizations such as the Brennan Center have pushed hard the narrative that state courts could and should use their discretion to protect significant individual rights despite the federal courts’ conservative retrenchment.

There is nothing remarkable about this nexus between legal strategy and constitutional theory. Old timers like me can nonetheless smirk at least at the rediscovery of state constitutional law and independent interpretation by liberal legal scholars and lawyers who are working hard to press state courts to employ their power to advance rights-forward views of state constitutionalism in order to combat federal neglect. And, to be sure, conservative scholars and lawyers have a playbook that would deploy state constitutional interpretation to ensure the establishment and maintenance of conservative results through independent approaches to reading and applying their Red state constitutions.

The pearl-clutching of Virginia (and other) Democrats seems to me another matter entirely, or least a more transparent effort to yoke theory to a certain version of constitutional hardball. Last week the Virginia supreme court issued a 4-3 ruling in which they interpreted “elections” to require something mor than the eleventh-hour enactment by the legislature of a redrawn Congressional map. Let me say first that I am not convinced by the majority’s arguments and so I think the case wrongly decided. The dissent raises a number of, to me, strong arguments based upon the Virginia Constitution’s text and some residue of common sense interpretation and the court majority’s response seem rather weak at parts. Beyond that, I cannot and will not say anything about the partisan motivations of the four in the majority, nor of the three in dissent. The opinion, at bottom, is within the boundaries of reasonable constitutional argument, and in some existential sense is a fairly workmanlike, and at times even boring, exegesis on the meaning of elections under the Virginia Constitution. Importantly as a matter of judicial federalism, there is nothing in the supreme court’s opinion that ensures that such a reading would be or will be compelling to other states that will consider similar redistricting shenanigans before the next Census is completed. This is, in the end, an example of independent state constitutional interpretation, meaningful for Virginia and only for Virginia.

Yet of course this decision has enormously important political effects. Therefore, Democrats have raced to the Supreme Court in an effort to get SCOTUS to overturn this effort. The arguments are wholly implausible, and it is hard not to see the Commonwealth’s efforts as anything other than a hail mary, hoping that the football will bounce around barely cogent legal arguments until it might fall haphazardly into the hands of a majority of the justices. The principal argument rests on a version of the so-called independent state legislature theory that was decisively rejected in Moore v. Harper. The sliver of hope reflected in the Court’s comment there that some federal constitutional protection is available when the state court has “arrogated judicial power” to itself is surely extinguished here, where the state court has engaged in normal (even if to many of us, including the dissenters, as unpersuasive) constitutional reasoning. Not to put too fine a point on it, but accepting the Commonwealth’s argument essentially eviscerates independent state constitutional interpretation, as it subjects state courts to the judgment of federal courts on matters that are entirely the province of state law. Or, to put this issue somewhat more charitably, it widens beyond sensible reason this ostensible exception to the foundational idea that federal courts will not subject state courts to second guessing when the fulcrum of the issue is the state constitution.

To be sure, Michigan v. Long introduces some potential ambiguity to this matter. Therein the Court held that if the state court is basing its decision on what is really federal law, then they can’t hide under the cloak of independent interpretation, but should be subject to the federal courts’ surely superior view of what federal law requires. Cleverly, the Commonwealth looks to Long in their SCOTUS appeal, arguing that the Virginia supreme court based its decision on an erroneous reading of federal law. This post is long enough already, so I will leave the reader to read the court’s lengthy opinion on her own, to see whether she agrees with my assessment that this argument is risible. The supreme court clearly bases its decision on its interpretation of what it believes the Constitution of Virginia demands. Michigan v. Long ultimately provides no support for the state’s argument, and is bound to fail.

So much for the Commonwealth’s hail mary. Lawyers gotta lawyer, and there is nothing especially unethical nor profoundly hypocritical in the state’s attempt to seek relief (throw itself at the mercy?) of the Court at this last proverbial minute. The other effort, however, is a bridge too far. Indeed, if the New York Times hadn’t reported this effort, I wouldn’t have believed it. Apparently a critical mass of Democratic operatives are pushing to have the supreme court upended by imposing retroactive age limits on the justices, the result of which is that the justices in the majority would be bounced from office and immediately replaced by enough justices to reach a quorum and, more to the point, justices who could be depended upon to quickly reverse course and uphold the legislature’s map.

This will go nowhere, it almost goes without saying. But let me suggest that this version of constitutional hardball is especially unattractive, precisely because it goes to the heart of what the strange bedfellows of liberals and conservatives — covering a spectrum from Justice Brennan to Chief Judge Jeff Sutton, and many others in between — have been advocating more or less consistently for now nearly a half century, and that is the virtue and value of a truly independent approach to state constitutional interpretation. Given the smaller scale of states in our overall polity, it is naturally convenient for hardcore partisans playing this sort of hardball to manipulate state political processes to accomplish nakedly political aims. That my post focuses on Democratic strategies in Purple State Virgnia shouldn’t blind us to the fierce efforts of MAGA Republicans to likewise weaponize various political and legal arguments to capture the apparatus of their states in order to advance raw partisan agendas.

That it is happening all over is regrettable. But let me say that the reason it is regrettable is not because it disturbs the pristine character of state constitutionalism and our judicial federalism. Let me not clutch my own pearls here. Rather, the reason is it disturbs an equilibrium (political + legal) that has reflected the common agenda and objectives of most parts of our political ecosystem for a long while now and, with it, has strengthened federalism and the comparative advantage of state constitutionalism and state constitutional jurisprudence in a time in which the turbulence of national politics has threatened the values of federalism that is reflected in our still durable and still potent constitutional order. Independent state constitutional interpretivists need real, not fair weather, friends.

[Reposted from my Substack]

The recent Tariffs case has again put the major questions doctrine front and center in the current administrative law ecosystem. MQD sits alongside Loper Bright one of two big bruiser doctrines in a turbulent world in contemporary admin law. What do these doctrines mean for courts determining whether and to what extent Congress has delegated meaningful regulatory power to administrative agencies?

Opinions from the justices defending and describing MQD suggest that one of the central elements of the favored analysis is the use of this doctrine as a canon of interpretation. For Justice Gorsuch, this canon emerges from the essential structure of Congressional power, the fulcrum of which is the Vesting Clause of Article I. Viewed more globally, as not only Gorsuch, but also Chief Justice Roberts and Justice Kavanaugh have articulated it in different places, the canon is part and parcel of our Constitution’s separation of powers scheme. It is not simply useful as an aid to interpretation, but is constitutionally required. Justice Barrett has made clear in two intriguing concurring opinions that MQD is better understood as no more or less than a rather ordinary canon of interpretation, something borne of “common sense” and embedded in our longstanding commitment to textualism in statutory interpretation.

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Whatever can be said on behalf or against Barrett’s effort at refining (and maybe thereby disciplining?) MQD, what her opinions make apparent is that the main event in all this is textualism, and MQD’s allure and also its controversy turns on how deeply committed are the justices and, with their boots on the ground, appellate judges to textualism as the one true method for discerning legislative will. This is true no less for Gorsuch’s grand theory of MQD. Take on face value his casting of the doctrine as “pro-Congress,” as Gorsuch puts it in his concurring opinion in Learning Resources, and see that what is likewise pro-Congress is fidelity to statutory text. Bottom line: If the text alone cannot bear the weight of an interpretation that authorizes agencies or the President to undertake regulatory decisions, then that’s the end of the matter. The requirement of a clear statement means clarity measured solely and inextricably by the text.

Pushing Barrett’s point further than perhaps she would allow, what is common sense about MQD is not so much the way in which the canon is used as a tie-breaker of sorts, but the core case for reading the statute as would a textualist. The statute can given only a meaning that the words will bear. Textualism 101. QED. You don’t really need a muscular canon to figure out what will be that meaning; you just need ordinary interpretation. Indeed, before MQD became all the rage, then-judge Brett Kavanaugh explained in an important Harvard Law Review essay, entitled “Fixing Statutory Interpretation,” that the critical error in modern approaches to delegation issues (focusing in particular on the Chevron doctrine) was the eagerness by judges to find statutes ambiguous when ordinary textualist interpretation would ably shape the statute’s interpretation and give it meaning.

Returning to Gorsuch on MQD, one can believe with him (I don’t, but this is not the post in which to fight this battle) that MQD is sourced in Article I and the separation of powers, but also see that what is undergirding all this is not the argument that the clear statement rule emerges from the Constitution, but the foundational claim that textualism writ large is required by the Constitution. That, of course, is the sine qua non of Justice Scalia’s theory, articulated most fully in his book on this subject and his most important statutory interpretation opinions.

Viewed through this lens, MQD is principally an aid to interpreting statutes where there is ambiguity. And we are reminded by the Chief Justice in Loper Bright that the determination of whether and to what extent the statute is ambiguous will be decided by courts not agencies, and, returning to the point, through textualist methodology.

To be sure, there is a there there in all this MQD debate. After all, the MQD doctrine in its modern version requires this clear statement only in matters of “economic and political significance.” Minor questions don’t require appeal to this doctrine. However, let’s remember that Team MQD still requires textualist interpretation in even those minor questions. We don’t draw the conclusion (Loper Bright teaches us) from the absence of language or legislative history indicating that agencies get to decide what the statute means that courts must then defer to agency interpretations. Rather, courts are obliged to interpret the statute, because that is what courts do and that is what is required by the APA and Marbury v. Madison.

And so the big event is textualism. That is true both before and after Loper Bright; and it is true whatever the courts are to make of MQD. Textualism helps courts to discern what Congress has done or not done with regard to delegating administrative power. And this is true of major and minor questions alike.1

(republished from my Substack).

1

Justice Kagan comes at all this from another direction entirely. In Part IV of her dissent in West Virginia v. EPA, she accuses the Court of jettisoning textualism in order to fulfill larger objectives. As she puts it: “ The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get out-of-text-free cards.” I am fully in accord with Kagan’s critique of MQD on other grounds, finding her dissents in the key cases and her concurrence in Learning Resources. However, I think that Team MQD, taking what they say about the particular statutes in question on face value, see no real daylight between a scrupulous commitment to textualist methodology and use of MQD as a compelling clear statement rule (Gorsuch) or a common sense rule (Barrett).

This is a guest post by Prof. David Yellen of the University of Miami Law School and former dean of that law school and two others. David has been deeply involved in ABA accreditation matters, in addition to other leadership roles.

It is a perilous time for the Council of the ABA Section of Legal Education. Its role as the national accreditor (for US Department of Education purposes) and approver (for bar examination eligibility purposes) of US law schools is being challenged. The Texas Supreme Court recently announced its “tentative opinion that the ABA should no longer have the final say on whether a law school’s graduates are eligible to sit for the Texas bar exam and become licensed to practice law in Texas.” www.txcourts.gov/media/1461357/259070.pdf. Several other states are considering similar actions.

To a large degree, the Council has brought these problems upon itself. Many of the current (and proposed) accreditation Standards are highly problematic. In ways large and small, the Council overregulates law schools, stifling innovation and imposing unnecessary costs. It is probably the most intrusive accreditor in the entire U.S. higher education landscape.  Nonetheless, I continue to believe that the profession, law schools and students are best served by a single accreditor/approver (at the moment, neither Texas nor any other state has proposed a workable alternative system of portability of bar examination eligibility), and I have serious doubts that any other entity will emerge as a better alternative to the Council.  Therefore, I would like to see the Council survive this challenging moment, and emerge as a better, leaner accreditor. In that spirit, I offer a few suggestions for steps that might reduce the growing momentum to displace the Council from its national role, and in the process, improve the Standards.

First, the Council should rebrand itself as the Law School Accrediting Board, or some other similar title. It is the Council, not “the ABA” that regulates law schools.  This is a common misunderstanding, as reflected in the phrasing of the Texas order. The Council operates almost entirely independently from the larger ABA, as is required by Department of Education rules. Given how unpopular the ABA is in certain segments of the country right now, diminishing the erroneous perception of ABA control could be good for the Council’s reputation.

This change would be consistent with other accrediting bodies. I serve as a public member of the Landscape Architecture Accreditation Board (LAAB). It operates within the framework of the American Society of Landscape Architects (ASLA), But in part because of the separate name, people don’t think or talk about ASLA accrediting landscape architecture programs.  Of course, landscape architecture is a much less contentious field than law and legal education, but the point still stands. 

Similary, medical schools are accredited by the Liaison Committee on Medical Education (LCME). LCME is sponsored jointly by the American Medical Association (AMA) and the Association of American Medical Colleges (AAMC).  It is as if the legal education accreditor was sponsored jointly by the ABA and the Association of American Law Schools.  Yet as far as I can tell, AAMC is truly perceived as an independent entity. 

Second, the Council should move towards eliminating the one way the larger ABA actually participates in the accreditation process.  Currently, changes to the Standards go to the ABA House of Delegates for review.  The House can concur in proposals or refer them back to the Council. If the Council resubmits the proposal, it goes back to the House a second time.  If the House again refers it back to the Council, the House’s role is complete.  If the Council approves the proposal a third time, it becomes effective without further review by the House.

This is an odd, and not very useful, process.  Most other accrediting bodies have nothing comparable.  If the ABA has a view on a Council proposal, they can participate through the notice and comment process. Eliminating the House of Delegates’ formal review would further emphasize the Council’s independence from the ABA. The Council should be judged on its own actions, not those of the larger ABA.

Third, and most importantly, the Council should publicly announce an intention to scale back unnecessary or inappropriate regulations. Accreditation standards should be limited to things that are virtually essential to a quality and honest program of legal education.  The Council’s job is to enable experimentation and evolution, not to drive change in a particular direction.  Too often the Council gives in to vocal and influential segments of the legal education community.  Many of these proposals may in fact be quite good for many or most law schools.  But the Council is making rules, not establishing best practices.  It is important to remember that a law school must be in full compliance with each and every Standard.  If one can imagine a high quality law school not doing a certain thing, that thing should not be a nationwide requirement.

The Council recently released a promising new document, the “Core Principles and Values of Law School Accreditation,” which could serve as the basis for this process. www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/2025/council-meeting/25-aug-core-principles-accreditation.pdf. It is by no means a perfect document (see Derek Muller’s cogent critique at https://excessofdemocracy.com/blog/2025/9/the-aba-is-inventing-new-principles-for-law-school-accreditation-quietly-abolishing-others) but it does reflect a level of regulatory modesty that is too often missing from the Council’s approach. The Council should rigorously review all of the Standards against the template established by the Core Principles document.  I believe that a fair-minded application of these principles would result in a significant reduction in Council regulation. In the end, I think the Standards would wind up looking a lot more like the minimalist Model Rule proposed by Muller.

The Council should also apply the Core Principles in selecting new members.  The Nominating Committee should make an effort to add several members who are committed to the principle of limited regulation.  People like Derek Muller and Dan Rodriguez, for example, could really change the Council dynamic.  There is a mechanism for people to seek election to the Council apart from the Nominating Committee route, but I am not sure that it has ever been utilized.  In part, that is because to vote on selections for Council membership, a member of the Section of Legal Education (any member of the ABA can join the section) must personally attend the ABA Annual Meeting.  The Council should broaden voting participation by removing the requirement of in-person voting.

A serious effort to reform itself could help salvage the Council’s role as the national accreditor law schools and principal gatekeeper for eligibility to take the bar exam.  Otherwise, the process of seeking alternatives to “the ABA” is likely to accelerate. Can the Council meet the moment?