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.