ABA: You MUST follow the law. (Unless we don’t like it.)

Cite this Article
Thomas A. Lambert, ABA: You MUST follow the law. (Unless we don’t like it.), Truth on the Market (February 17, 2006), https://truthonthemarket.com/2006/02/17/aba-you-must-follow-the-law-unless-we-dont-like-it/

WARNING: This post is off-topic for this blog (it doesn’t relate to markets). If that bothers you, don’t read any further. Moroever, I do not purport to speak for my co-bloggers. Their opinions of the issue discussed below may differ from my own.

Having issued those caveats, I cannot resist making one more comment (my first comment is here) on the American Bar Association’s utter hypocrisy regarding the rule of law.

At its mid-year meeting this week, the ABA did two notable things. First, the House of Delegates “voted overwhelmingly” to approve a resolution calling on the President to follow the law with respect to domestic spying. Among other things, the six-clause resolution “call[ed] upon the President to abide by the limitations which the Constitution imposes on a president…” (Paragraph 1), and “urge[d] the President, if he believes [the law] is inadequate…to seek appropriate amendments or new legislation rather than acting without explicit statutory authorization” (Paragraph 2). In other words, Mr. President, you must abide by the Constitution, and if you don’t like a statute, you can’t just violate it; you should go to the legislature and get it amended.

While I’m taking no position on the legality of the NSA’s domestic spying program, this little tongue-lashing seems appropriate for an organization that, according to its own press release, “works to build public understanding around the world of the importance of the rule of law in a democratic society.”

But what about the ABA’s second major action this week? After chiding the President for not following the law, the Association turned its attention to the law schools. It told them that, to be accredited (i.e., to be viable at all), they must demonstrate their commitment to racial and gender diversity “by concrete action.” That means they must show actual results, not just sincere and extensive efforts. Moreover, they’re not allowed to let that pesky little law thing get in their way. The Association specifically stated that:

The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211.

(Amended standards available here.)

So I’m confused. The organization dedicated to “build[ing] public understanding around the world of the importance of the rule of law in a democratic society” is telling the President he must follow the Constitution and statutes, but public law schools don’t have to (and, indeed, are not permitted to, if doing so would cause them to disappoint the Almighty ABA)? I guess the law applies only when we like what it’s telling us to do. Or maybe the rule is that lawyers are above the law. Maybe Michael Greco can explain this to me.

(It’s interesting to note, by the way, that the ABA’s website proudly posts all sorts of information about its little lecture to the President. There’s zero mention of the order telling law schools to ignore the law.)

For more on the ABA’s accreditation standards, see here, here, and here.