This week, the Federal Trade Commission issued a little-noticed letter to the Texas Supreme Court that could have a significant impact on the legal profession. The state justices are exploring a radical change in bar admissions, seeking alternatives to the American Bar Association.
In their letter, FTC officials indicated that they view the ABA as an effective monopoly in bar admissions. The potential state change itself may be less important than how the ABA itself has changed in bringing about these growing calls for separation from the roughly 150-year-old organization.
In the fall, the Texas Supreme Court issued a tentative opinion that declared that the ABA “should no longer have the final say on whether a law school’s graduates are eligible to sit for the Texas bar exam and become licensed to practice law.”
After the court invited public comment, two FTC officials, Clarke Edwards and Daniel Guarnera, signaled support for potentially moving away from ABA accreditation in a nine-page letter. They not only objected to the possible monopoly but also to the “rigid and costly requirements” imposed by law schools that often reinforce an “elitist model of legal education.”
Whether the ABA constitutes a true monopoly can be (and likely will be) hotly contested. What is less debatable is the value of some competition or alternatives to the ABA. The organization is a textbook example of how the lack of competition can instill not just a sense of institutional impunity but arrogance.
For decades, the ABA has moved steadily to the left, taking on a greater level of advocacy and activism as an organization. When it was founded on August 21, 1878, in Saratoga Springs, New York, the 75 lawyers from 20 states (and the District of Columbia) were seeking an organization to create a national system of standards for “the advancement of the science of jurisprudence, the promotion of the administration of justice.” The profession at the time was a largely ad hoc and informal collection of state rules and apprentice-based systems.
The ABA brilliantly filled that void and helped professionalize lawyering through bar and educational standards. The dominance of the ABA was due to the fact that it filled that needed and uncontroversial role. As a result, some estimate that as many as half of the nation’s lawyers were members in 1979.
However, in the last few decades, the ABA followed the same trend as higher education and the media, as activists on the left took over key positions and used the organization to advance their own social, political, and legal viewpoints. Neutrality was tossed aside in favor of advocacy.
The shift at the ABA is illustrated in the long debate over abortion. For decades, abortion (and the constitutional basis for Roe v. Wade) has sharply divided not just the public but the bar as well. But in 1990, activists succeeded in getting the association’s House of Delegates to adopt a pro-abortion resolution that said that the right was protected under the Constitution (a view adopted but later rejected by the Supreme Court).
Many were shocked that the ABA would simply take a side on an issue that divided many legal scholars, lawyers, and judges. Another vote was taken and the members decided by a vote of 200 to 188 that the issue was “extremely divisive” and that the ABA should not take an organizational position.
But it did not matter to the activists that the group itself was divided down the middle. They came back and adopted a pro-abortion position again in 1992. This time, the vote was 276 to 168.
So, with almost 40 percent of the delegates asking the ABA to respect opposing views on a divisive matter of constitutional interpretation, the ABA simply muscled through the vote.
What followed was the opening of the floodgates for activists to get the ABA to declare on an array of divisive issues on the side of liberal interpretations and agendas. Not surprisingly, lawyers left the organization in droves.
Today, there are roughly 1.3 million lawyers in the United States. Even if the ABA represented just half of that number, it would have 650,000 members. However, by 2015, it had fallen to 400,000. Last year it fell to 227,000 members, or just 17 percent of the bar.
Read full article
https://thehill.com/opinion/judiciary/5636627-the-rise-and-fall-of-the-american-bar-association/
