107 F.3d 1026 (3rd Cir. 1997), 96-1792, Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n

Docket Nº:96-1792.
Citation:107 F.3d 1026
Party Name:MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC. v. AMERICAN BAR ASSOCIATION; Law School Admission Services, Inc.; Law School Admission Council; The Association of American Law Schools, Inc.; James P. White; Nina Appel; Jose R. Garcia-Pedrosa; Laura N. Gasaway; Frederick M. Hart; Rudolph C. Hasl; Carl C. Monk; R.W. Nahstoll; Henry Ramsey, Jr.; Norman R
Case Date:February 28, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1026

107 F.3d 1026 (3rd Cir. 1997)



AMERICAN BAR ASSOCIATION; Law School Admission Services,

Inc.; Law School Admission Council; The Association of

American Law Schools, Inc.; James P. White; Nina Appel;

Jose R. Garcia-Pedrosa; Laura N. Gasaway; Frederick M.

Hart; Rudolph C. Hasl; Carl C. Monk; R.W. Nahstoll;

Henry Ramsey, Jr.; Norman Redlich; John E. Ryan; Gordon

D. Schaber; Pauline Schneider; Steven R. Smith; Claude R.

Sowle; Robert A. Stein; Rennard Strickland; Roy T.

Stuckey; Leigh H. Taylor; Frank K. Walwer; Sharp

Whitmore; Peter A. Winograd, Massachusetts School of Law at

Andover, Inc. ("MSL"), Appellant.

No. 96-1792.

United States Court of Appeals, Third Circuit

February 28, 1997

Page 1027

[Copyrighted Material Omitted]

Page 1028

        Argued Dec. 10, 1996.

        Michael M. Baylson (argued), Elise E. Singer, Edward G. Beister, III, Melissa H. Maxman, Duane, Morris & Heckscher, Philadelphia, PA, Lawrence R. Velvel (argued), Michael L. Coyne, Constance L. Rudnick, Peter M. Malaguti, Massachusetts School of Law at Andover, Andover, MA, for Appellant.

        David T. Pritikin (argued), Jeffrey H. Dean, David R. Stewart, Sidley & Austin, Chicago, IL, Barbara W. Mather, L. Suzanne Forbis, Pepper, Hamilton & Scheetz, Philadelphia, PA, for Appellees American Bar Association, James P. White, Nina Appel, Jose R. Garcia-Pedrosa, R.W. Nahstoll, Henry Ramsey, Jr., Norman Redlich, John E. Ryan, Gordon D. Schaber, Pauline Schneider, Steven R. Smith, Claude R. Sowle, Robert A. Stein, Rennard Strickland, Roy T. Stucky, Leigh H. Taylor, Frank K. Walwer, Sharp, Whitmore, and Peter A. Winograd.

        Mark P. Edwards (argued), Morgan, Lewis & Bockius, Philadelphia, PA, for Appellees Law School Admission Services, Inc. and Law School Admission Council.

        Robert A. Burgoyne (argued), Stephen M. McNabb, Fulbright & Jaworski, Washington, DC, for Appellees The Association of American Law Schools, Inc. and Carl C. Monk.

        Joel I. Klein, Acting Assistant Attorney General, A. Douglas Melamed, Deputy Assistant Attorney General, Catherine G. O'Sullivan, Andrea Limmer, Marion L. Jetton, Attorneys, Department of Justice, Washington, D.C., for United States as Amicus Curiae.

        Before: BECKER, MANSMANN, and GREENBERG, Circuit Judges.


        GREENBERG, Circuit Judge.

        This case is before this court on appeal from an order of the district court granting summary judgment on all counts to the appellees in this antitrust action brought against them by the Massachusetts School of Law at Andover, Inc. ("MSL"). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1337, and this Court has jurisdiction under 28 U.S.C. § 1291. This appeal principally presents a number of questions regarding the scope of immunities from the antitrust laws and related antitrust discovery issues. An examination of the parties and conduct in question is first necessary.


  1. The Parties

            MSL has been

    Page 1029

    operating a law school in Massachusetts since 1988. The Board of Regents of Massachusetts authorized MSL to grant the J.D. degree in 1990. This authority allowed MSL's graduates to take several bar examinations, including that in Massachusetts. MSL has the stated policy of providing low-cost but high quality legal education and attracting mid-life, working class, and minority students. MSL facilitates this policy with its admissions procedure and a tuition of $9,000 per year. Many of MSL's policies and practices conflict with American Bar Association ("ABA") accreditation standards, and MSL aggressively has sought changes in those standards.

            The ABA, a national professional organization of attorneys whose membership is open to members of any bar in the United States, has been concerned with legal education and bar admissions throughout its history. In 1921, through its Section of Legal Education and Admissions to the Bar (the "Section"), the ABA first developed standards of accreditation for legal education programs. The ABA petitioned state supreme courts to rely on its accreditation decisions in connection with bar admission decisions. Now, all 50 states and the District of Columbia consider graduation from an ABA-accredited law school sufficient for the legal education requirement of bar admission. App. at 1396-1409. The United States Secretary of Education considers the Council of the Section to

    Page 1030

    be the national agency for accreditation of professional schools of law and a reliable authority concerning the quality of legal education. App. at 3378. The ABA informs the states of its accreditation decisions and annually sends them the Review of Legal Education in the United States, the ABA accreditation standards, and any proposed revisions of the standards. During the period at issue, there were 177 ABA-accredited law schools in the United States and over 50 unaccredited schools with some form of state approval such as MSL enjoys. The ABA consistently has opposed attempts to change or waive bar admission rules to allow graduates of schools not accredited by the ABA to take the bar examination. See, e.g., app. at 3623-53.

            Many states have methods of satisfying the legal education requirement other than graduation from an ABA-accredited school. These methods include legal apprenticeship, practice in another state, and graduation from a school approved by the American Association of Law Schools ("AALS") or a state agency. The AALS is an association of 160 law schools which serves as a learned society for law schools and legal faculty and as a representative of the law school community with the federal government and other education organizations. Furthermore, in every state, a bar applicant or law school can petition the bar admission authority for revision or waiver of the rules. MSL won a waiver of New Hampshire's rules to allow its graduates to take the bar in 1995, and has filed petitions seeking similar relief in Connecticut, Maine, New York, and Rhode Island. Maryland and Washington, D.C. have granted petitions of graduates of MSL to take the bar. MSL graduates can take the bar examination immediately after graduation in California, Massachusetts, New Hampshire, Vermont and West Virginia, and in 12 other states after practicing in another state first.

            The ABA allows graduates of non-accredited schools to join the ABA once they are admitted to a bar and does not prohibit its members from hiring or otherwise dealing with graduates of such schools. The ABA does not prevent its members from teaching at non-ABA-accredited schools, but it does not allow its accredited schools to let students transfer credits from unaccredited schools or to accept graduates of unaccredited schools into graduate programs.

            ABA accreditation is open to any law school that applies and meets the ABA standards. The ABA grants provisional accreditation to schools that substantially comply with its standards and promise to comply fully within three years. An Accreditation Committee makes an initial evaluation of a school for provisional accreditation and gives a recommendation to the Council of the Section. The Council then makes a recommendation to the ABA House of Delegates, which has the ultimate decisionmaking authority.

            A law school must have been teaching students for five years and graduated three classes to be eligible for AALS membership. The AALS holds an annual meeting, professional conferences and workshops, 1 and publishes the Journal of Legal Education. All of its current members are ABA-accredited, but accreditation is neither necessary nor sufficient for membership approval. The AALS accredits schools in the sense that it determines whether a school meets its membership requirements, but it has accreditation standards and procedures separate from those of the ABA. The AALS conducts a site visit, independently of the ABA, when a school applies for membership, and it conducts periodic visits after membership, usually jointly with the ABA if the school is ABA-accredited. The AALS is not involved with site inspections for provisional ABA accreditation, such as the one the ABA undertook at MSL.

            The Law School Admissions Council, Inc. ("LSAC") is the successor organization to the Law School Admission Council and Law School Admission Services, Inc. The LSAC, as have its predecessors, administers the Law School Admissions Test ("LSAT"). The LSAC is not affiliated formally with either the ABA or the AALS and does not participate

    Page 1031

    in the ABA accreditation process. Membership in the LSAC is open to any United States law school that (1) requires that "substantially all of its applicants for admission take the Law School Admission Test," and (2) is ABA-accredited or an AALS member. App. at 2552. MSL does not require the LSAT, never has applied for AALS membership, and is not ABA-accredited, so thus is not eligible for LSAC membership.

            In addition to administering the LSAT, the LSAC performs a number of other services. The Candidate Referral Service ("CRS") provides lists of names and addresses of people who have taken the LSAT. Use of the CRS is open to any school which has degree granting authority from a state, regardless of LSAC membership or ABA accreditation, and MSL has made use of this service. App. at 2410-12, 2511-12, 2427-29. The Law School Data Assembly Service ("LSDAS") provides a summary of a law school applicant's college record and LSAT score. LSDAS is also open to all schools and has been used by MSL. App. at 2410-12. The LSAC publishes a handbook, The Official Guide to U.S. Law Schools, with a two-page description of each United States LSAC member school, and two appendices with the names and addresses of Canadian LSAC members and...

To continue reading