FTC Endorses Ohio Supreme Court Proposal to Weaken ABA’s Law School Accreditation Monopoly

The Federal Trade Commission lauded an Ohio Supreme Court proposal to lower the cost of legal representation by ending the American Bar Association’s explicit control over whether an Ohio bar applicant’s legal education is sufficient for practicing law in the state, undermining its monopoly.

Responding to the court’s invitation to comment, the directors of the Office of Policy Planning and Bureau of Competition sent a letter to the court on Friday highlighting the competitive risks of continuing to grant the largest trade association of practicing attorneys the power to set policies that limit entrance into the profession.

Restricting the supply of lawyers might increase compensation for ABA members, but it does so by imposing significant burdens on Ohioans seeking legal representation, the letter states.

The ABA’s accreditation group is also dominated by law school faculty and administrators with strong incentives to thwart lower cost alternatives for legal education. The letter notes the Department of Justice Antitrust Division recognized these issues in 1995, filing a civil lawsuit alleging the ABA “allowed its law school accreditation process to be captured by those with a direct interest in its outcome” and that the organization “at times acted as a guild” advancing the interests of its members.

Drawing on decades of enforcement, advocacy experience and commentary from legal scholars in the areas of accreditation and occupational licensing, the letter argues in favor of opening law school accreditation to potential new competitors.

Recently, the Florida and Texas Supreme Courts amended their rules so that the ABA would no longer have the “final say” as the “sole gatekeeper” of educational requirements for lawyers. The Tennessee Supreme Court is also considering reducing its reliance on ABA accreditation. Commission staff have strongly endorsed these reforms while also encouraging other states to follow.

At the urging of President Donald Trump, the Department of Education is supporting the entry of new accrediting bodies in higher education and removing “unnecessary requirements and barriers to institutional innovation.”

The Commission vote authorizing the issuance of the staff letter was 2-0.