Skip to main content

Breaking the ABA’s Law School Cartel: A Proposal to Make Oklahoma Top-Ten in Innovative Lawyer Education


Would we grant Devon Energy a government-enforced veto over whether its competitors should be issued drilling permits? Would we think it acceptable for the government to require new drug applicants to first obtain approval from Pfizer or Johnson & Johnson before applying for FDA approval? Of course not. Generally speaking, we are not in favor of foxes guarding hen houses, and our laws tend to reflect that instinct.

Nevertheless, when it comes to deciding who can and cannot become a lawyer, nearly all states (including Oklahoma) have delegated the design of their hen house security plan to the fox’s self-interested trade association, the American Bar Association (ABA). This is the argument of my policy analysis released today, Breaking the ABA’s Law School Cartel: A Proposal to Make Oklahoma Top-Ten in Innovative Lawyer Education.

The ABA, a private trade association for lawyers, has a government-enforced monopoly over legal education as the only approved accreditor of law schools in 47 states. The states wrote this monopoly into their laws after aggressive lobbying by the ABA, which was fairly open about its goal - limiting the number of new lawyers who could enter the market and compete with the ABA’s members. The result has been exactly what one would predict from such a state-enforced cartel: lower quality, higher prices, and stifled innovation.

Perhaps more important to the average non-lawyer, the ABA’s dominance of legal education influences our government well in excess of what you might expect from a relatively obscure trade association that only claims 14% of those practicing the trade it supposedly represents. Lawyers play a unique and highly influential role in politics and government by virtue of the type of work government does. Some government positions can only be filled by lawyers (judges, prosecutors), others’ ranks are historically populated by lawyers (legislatures), and the rest frequently rely on the assistance of lawyers to do their work.

Since lawyers play such a large role in our public life, it seems to me we should pay attention to the process for forming and educating them. After all, the conventional wisdom that lawyers as a group are well to the left of mainstream American political sentiment is conventional for a reason—it’s true. But it is not obvious from perusing history that there is anything inherent about the study and practice of law that either disproportionately attracts political liberals, or that shifts the legally trained it to the left. My paper points out historical examples of prevailing legal conservatism, such as the American founders and even the Oklahoma Bar Association during the Roosevelt presidency. Reading the vociferous opposition to the New Deal in the pages of the Bar Journal (unfortunately, these archived issues are not accessible to the public, so you’ll have to take my word for it) is rather amusing for anyone who knows the Bar Association’s current political bent.

So if it is not the study of the law itself that is producing a leftward skew among lawyers, is it possible that American law schools are a source? It does not seem farfetched to me. The ABA dictates the structure and substance of legal education, which must have at least some influence on the views of students matriculating through law schools. It is well known that law school faculties are largely populated by left of center professors. My alma mater is considered by some to be a “conservative” law school, but I would be surprised if anything like a majority of the faculty or students were conservatives at the time I attended. My colleague who attended the same law school more recently than I estimates that the faculty is close to 50-50, with conservatives having a slight edge, which is encouraging to hear. Whatever the actual numbers, what is generally meant when lawyers describe a law school as “conservative” is there are actually a few prominent conservatives on a faculty otherwise dominated by liberals, and conservative students are not made to feel like unsophisticated dolts for joining the Federalist Society.

Oklahoma can chart a different course by opening up the market for legal education and shifting our focus in licensing to lawyer competency. The way to achieve this, as outlined in my paper, is to eliminate the requirement that lawyers graduate from an ABA-approved law school to sit for the bar exam, and to reform the bar exam itself to better measure competency. Breaking the ABA stranglehold on legal education will allow market forces to operate, sparking innovation and bringing down costs. Improving the bar exam will better protect the public from incompetent lawyers.

And perhaps, after lo these many years, we will once again see the Oklahoma Bar Association denouncing big government programs. I won’t hold my breath, but a guy can dream.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

Popular posts from this blog

COVID Inspires Tyranny for the "Good" of Its Victims

The Christian philosopher, C.S. Lewis, once said, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies." The moral busybodies C.S Lewis warns of reminds me of those who would have Americans give up their liberty to combat COVID-19.   A recent Oklahoman op-ed compared COVID-19 to World War II, stating that the number of deaths from COVID-19 is approaching the number that died fighting for this country and the freedoms it protects. This comparison is, of course, nonsense. This suggests that a virus with a high survivability rate is an equivalent threat to the Nazi and Japanese regimes that brutally murdered millions. The piece uses wartime rationing of meat and cheese, a sacrifice necessary to ensure men on the front lines had adequate nutrition, to justify Americans accepting counterproductive lockdowns in exchange for additional stimulus c...
Read more

COVID-19 Exposes TSET’s Uselessness: Let’s Get Rid of It

After more than a month of COVID-19 house arrest , Oklahoma is reopening. However, the government-created economic disaster that shutdown orders have caused will be studied by epidemiologists, economists, and other social scientists for decades to come. In the meantime, we have to deal with the consequences as they occur, everything from a lack of toilet paper on store shelves (hopefully, that’s over) and hair that’s grown too long to what will undoubtedly be a host of bankruptcies. In the meantime, there is a timely question that truly ought to be answered in Oklahoma. Where has TSET (Tobacco Settlement Endowment Trust) been in this time of crisis? Recall that TSET was created as a quasi-independent government by constitutional amendment as part of the 46-state tobacco settlement wherein tobacco companies agreed to pay states as reimbursement for the Medicaid costs of treating tobacco users for tobacco-induced illnesses. Instead of using the money to reduce taxes for Oklahom...
Read more

How Oklahoma Can Be Number One in Covid Policy

South Dakota, that sound you hear behind you is footsteps. Oklahoma can be Number One in the policy response to Covid-19. We’ve done fairly well to this point compared to other states, but to take us to the top, our leaders will need good, accurate information, must ignore hyperbole (often outright falsehoods) from the media-politico controversy machine, and should trust individual Oklahomans to do what is best for themselves and their families. Oh, and it would help to have some courage in the face of criticism (or ear plugs to tune out the whining). Fortunately, 1889 Institute has compiled a very helpful webpage containing the cold, hard facts about SARS-CoV-2. Based on these facts, not hysteria and virtue signaling, we recommend some straightforward policy responses. The page is here for anyone who wants to arm themselves with knowledge, rather than bask in the newly virtuous habit of broadcasting how afraid and ignorant one is. For example, did you know that the evidence for wid...
Read more

Present Reforms to Keep the Ghost of State Questions Past from Creating Future Headaches

Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution. Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.   Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place. ...
Read more