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

Licensing Boards Might Violate Federal Law: Regardless, They Are Terrible Policy

Competition is as American as baseball and apple pie. “May the best man win” is a sentiment so old it doesn’t care about your pronouns. The beneficial effects of competition on economic markets are well documented. So why do we let powerful business interests change the rules of the game when they tire of competing in the free market? Most of the time when an occupational license is enacted, it is the members of the regulated industry who push hardest in favor of the license. Honest competition may be fundamentally American, but thwarting that competition through licensing seems to be fundamentally Oklahoman. Oklahoma doesn’t have the most occupational licenses, but when they do license an occupation, the requirements tend to be more onerous than the same license in other states. But what if, instead of merely breaking the rules of fair play to keep out would-be competition, Oklahoma licensing boards are also breaking the law? Normally a concerted effort to lock out competition would v
Read more

Undo 802

Why is it that when conservatives suffer a major loss, they give up, accept the new status quo, and fall back to the next retreat position? When progressives suffer a major loss, they regroup and try again. And again. Until they finally wheedle the American public into giving in. I propose a change in strategy. The Oklahoma Legislature should make undoing State Question 802 its top legislative priority for 2021. This will not be an easy task (legislators seem to prefer avoiding difficult tasks) but it is a critical one. The normal legislative process, with all its pitfalls and traps for the unwary, will only bring the topic to another vote of the people. So why spend so much political capital and effort if the same result is possible? Three reasons.   First is the disastrous consequences of the policy. Forget that it enriches already-rich hospital and pharmaceutical executives. Forget that it gives the state incentives to prioritize the nearly-poor covered by expansion over the des
Read more

Oklahoma Mayors Acted Unlawfully With COVID-19 Orders

In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply. Was any of this unilateral mayoral activity legally valid? For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19 , the short answer is no. (A summary of the paper can be found here .) A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion tha
Read more

COVID-1984: Have Americans Become Too Complacent in Our Liberties?

Alongside the coronavirus, another pandemic is gripping our country, one that we will feel the consequences of long after we reach herd immunity. I dub this pandemic COVID-1984, and I fear it will rot the roots of the Tree of Liberty. The consequence will be a government emboldened by a passive citizenry. One of the most surprising aspects of our current situation is how willing people have been to report their fellow citizens to authorities for the most minor and meaningless offenses. I used to wonder how people in authoritarian countries like Stalinist Russia and Maoist China went along with those cruel regimes. It turns out a tiny bit of fear is all you need to be a successful dictator. And now it’s all the easier to report your neighbors for reading alone on the beach with tip lines.   Even as governors and judges begin to lift stay at home orders, mayors are extending them. A county judge issued a temporary restraining order against Illinois Governor J.B. Pritzker’s stay at
Read more