Zaring on the ABA Consent Decree

Cite this Article
Joshua D. Wright, Zaring on the ABA Consent Decree, Truth on the Market (March 28, 2006),

David Zaring, guest blogging at Concurring Opinions, has some thoughts on the sunsetting of the ABA’s consent decree this June. David asked for my thoughts on what this will mean for the market for legal education (also, I am quite flattered that Zaring describes me as a “prominent and businessey professor blogger,” but, I am a sucker for puffery) in exchange for the right to cross-post here at TOTM. My short answer to his question: probably not much. Here goes:

Perhaps you have wondered why the money that law school professors pull down is only obvious at certain law schools subject to state cognates of the Freedom of Information Act. Antitrust may be the culprit. Pursuant to a consent decree with the United States resolving a case brought under the Sherman Act, the ABA’s school accreditation committee has, among other things, “agreed to refrain from using law school compensation data and from adopting or enforcing any standards that have the purpose or effect of imposing requirements as to the base salary, stipends, fringe benefits or other compensation paid to law school deans, administrators, faculty, librarians or other employees.�

This consent decree sunsets on June 25, after a ten year run during which a number of new law schools entered the market, and salary data got enshrouded in an aura of mystery. Did the consent decree affect legal education, was it a good thing, and what will happen when it expires?

Antitrust ain’t my raison d’etre. I only wonder – and I confess I only wonder this because of a tip from a colleague – if the law reviews, with their concerted action on article length are going to be the next up against the wall. [ed. Uh, the article length thing isn’t commercial and varies from review to review. Oh really? Each of the eleven law reviews that got the ball rolling on article length signed on to a joint statement, each is “committed to rethinking and modifying its policies,â€? presumably at the behest of the other ten, and each is “actively exploring how to addressâ€? article length in concert with one another. So I recommend against loose talk around Thomas Barnett.]

Anyway, I farmed this one out to an expert. I asked Josh Wright, a prominent and businessey professor blogger, what he thought about the sunset of the ABA accreditation decree, in exchange for an offer to cross-post the result. Here’s what he said:

“The consent decree prohibited activity that was plainly anticompetitive: colluding with respect to faculty salaries and other benefits as well as boycotting non-ABA approved schools. Forcing existing law schools to face competition from schools, even those that offer lower salaries and fewer amenities, can only improve legal education. However, my guess is that the expiration of the decree will not tempt further collusion, because any such attempt would be both highly visible and likely to attract antitrust scrutiny.”

But Josh and I would welcome further thoughts.