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The court order the U.S. Department of Justice obtained last month against the American Bar Association for alleged violations by its law school accreditation section put a cap on a 10-year antitrust battle between the two parties that ended-at least on paper-on June 25. The $185,000 order from the U.S. District Court for the District of Columbia on June 23 stemmed from the alleged failure of the American Bar Association (ABA) to comply with a consent decree that it reached with the government in an antitrust lawsuit brought in 1995. The recent court order came just under the wire as the consent decree expired last week. But despite the end of the decree and, with it, the requirement of the ABA to adhere to its many specifications, the ABA is likely to remain in the government’s cross-hairs. In a prepared statement, ABA President Michael Greco said last week that the ABA would “continue to administer the law school accreditation process in full compliance with antitrust law.” But he declined to comment on whether the ABA would continue to follow the decree’s specifications. In anticipation of the decree’s expiration, the ABA released a memo in February stating that the organization would follow the “substantive provisions” of the consent decree after it expired. A spokesman for the Department of Justice (DOJ) said the agency was “mindful” of the decree’s expiration as its attorneys pursued what it said was a five-month investigation into the ABA’s alleged violations of the decree. The spokesman also acknowledged that with the decree’s expiration, the ABA was no longer obligated to follow its requirements. ‘More than a red flag’ The decree, reached on June 25, 1996, among other things prohibited the ABA’s accrediting body from imposing requirements on faculty pay and disseminating the information. It also imposed membership requirements on the ABA’s accrediting committee and law school inspection teams. However, the end of the decree most likely will not end the government’s watch over the ABA, some observers said. The DOJ’s pursuit of a contempt order was “more than a red flag” signifying that it will continue to watch the ABA to make sure its accrediting arm complies with antitrust law, said Saul Levmore, dean of the University of Chicago Law School. “If I were the chair of legal education [for the ABA] I would feel very much under the gun,” he said. Levmore said that he was contacted twice recently by DOJ attorneys asking if he observed any antitrust violations at the ABA. He and a group of law deans filed a letter in March with the U.S. Department of Education seeking to strip the ABA of its power to determine tenure at law schools. Levmore said that he and other deans received the calls after the group filed the letter. It is possible that the DOJ could continue investigating violations committed during the life of the consent decree even after it expires, said Thane Scott, an antitrust partner at Boston’s Edwards Angell Palmer & Dodge. Defendants operating under consent decrees already have the DOJ’s attention, he said, and the DOJ is not likely to forget who they are. “You hate to have anybody at the DOJ have memorized your phone number,” he said. Scott added that the parties “seem to have a little tiff going.” Filing another lawsuit is an option for the DOJ, he said. The $185,000 order appears to be just part of heightened tensions between the ABA and the Bush administration. During his one-year stint as the ABA’s leader, Greco has issued statements denouncing, among other things, policies on the waiver of attorney-client privilege. In addition, the ABA has drawn the ire of conservatives by proposing to toughen accrediting standards related to diversity enrollment in law schools, on which the ABA House of Delegates will vote in August. The ABA’s proposal to change its accreditation standards, in part, prompted DOJ to seek the recent court order. According to DOJ, the ABA “on multiple occasions” did not provide the government with a notice of proposed changes. The DOJ spokesman said that the pursuit of the recent order was unrelated to any other disagreements the ABA may have with the current administration. But Levmore said that the ABA and DOJ are “on a collision course.” The diversity issue, he said, “just seemed to throw gas on the fire.”

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