Why States Are Questioning the ABA: Monopoly Claims, Membership Decline, and Calls for Alternative Accreditation

Opinion: The Rise and Fall of the American Bar Association

This week the Federal Trade Commission quietly sent a nine‑page letter to the Texas Supreme Court that could reshape how lawyers are admitted to practice. Texas justices are considering a major change in bar admissions by exploring alternatives to the American Bar Association's role in accrediting law schools.

In that filing, FTC officials Clarke Edwards and Daniel Guarnera said they view the ABA as a de facto monopoly in law‑school accreditation and criticized the organization for prescriptive, costly standards that perpetuate what the letter called an "elitist model of legal education." The dispute highlights not only a possible procedural change in Texas but also how the ABA has evolved in ways that have prompted growing calls to separate state licensing from this roughly 150‑year‑old organization.

From Standard‑Setter To Advocate

Founded on August 21, 1878, in Saratoga Springs, New York, the American Bar Association was created by 75 lawyers from 20 states and the District of Columbia to develop national standards "for the advancement of the science of jurisprudence'' and to promote fair administration of justice. At a time when legal training was often informal and localized, the ABA helped professionalize lawyering by setting common standards for bar admission and legal education.

That role made the ABA the dominant national standard‑setter for much of the 20th century. By some estimates, nearly half of U.S. lawyers were members by 1979. But over recent decades the organization shifted toward public advocacy on a range of social and legal issues, a change that many members found troubling.

Internal Battles and a Turning Point

One early flashpoint was abortion. In 1990 the ABA's House of Delegates narrowly approved a resolution endorsing a constitutional right to abortion, later acknowledging the issue's divisiveness and voting 200 to 188 that the association should refrain from taking a position. Two years later activists succeeded in passing a pro‑abortion resolution by a vote of 276 to 168. That sequence signaled to many members that advocacy could override calls for organizational neutrality.

Critics say that this pattern opened the door for the ABA to take positions on numerous polarizing issues, generally aligning with more liberal interpretations and policy goals.

Membership Decline And Institutional Consequences

Membership has fallen dramatically in recent years. With roughly 1.3 million lawyers now practicing in the United States, a hypothetical half would equal about 650,000 members. Instead, ABA membership dropped to roughly 400,000 by 2015 and declined further to about 227,000 last year — roughly 17 percent of the national bar. The decline mirrors trends in other professional groups; the American Medical Association, for example, once represented roughly 75 percent of physicians and now covers about 15 percent.

Despite this shrinkage, the ABA continues to be treated by many institutions and the media as the voice of the profession. That perception troubles critics, who argue that an organization representing fewer than two in ten lawyers should not be regarded as the only or definitive representative of American lawyers.

Ideology, Law Schools, And Influence

The exodus of some members and the consolidation of like‑minded leaders have left parts of the ABA and legal academia more ideologically homogeneous. A Georgetown study of top law schools found that only 9 percent of professors at the top 50 law schools identify as conservative, highlighting a pronounced imbalance in viewpoints within elite legal education.

Law schools and the ABA maintain a symbiotic relationship — exchanging awards, speaking slots, and prestige — but both are criticized as becoming less relevant to the broader public as their internal orthodoxies harden.

Critics point to examples of broad advocacy beyond accreditation. In a 2017 amicus brief the ABA argued that 'diversity and inclusion are essential to public confidence in the bench and bar' and contended that denying transgender students access to bathrooms that align with their gender identity could deter potential law students from marginalized communities. Whether a majority of lawyers would endorse such assertions is unclear, but the organization has sometimes projected these positions as representative of 'America's lawyers.'

What Should States Do?

The FTC's letter and Texas' tentative opinion — which stated 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' — raise a broader policy question: why should states and universities continue to treat the ABA as the singular gatekeeper for legal education and bar entry?

Some competition — whether through alternative accrediting bodies, state‑level accreditation options, or clearer pathways to bar admission that do not rely solely on ABA approval — could benefit the profession. Competition could encourage the ABA to refocus on neutral, standards‑based oversight rather than partisan advocacy.

I hope the ABA can return to its original mission as a standards body rather than a political actor. For many who remember its earlier role, that would be a welcome restoration.

About the author: Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and author of the best‑selling book The Indispensable Right: Free Speech in an Age of Rage.

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