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On December 1, the Federal Trade Commission's (FTC) Office of Policy Planning and Bureau of Competition ("OPP/BOP") responded to the Texas Supreme Court's invitation for comment on the proposed amendments to Rule 1 of the Rules Governing Admission to the Bar of Texas ("Proposed Amendment"), endorsing the Proposed Amendment to eliminate the requirement that bar applicants graduate from a law school accredited by the American Bar Association (ABA).1
In the OPP/BOP's view, the current requirement delegates critical gatekeeping authority to a private trade association with structural incentives to restrain competition. The letter characterizes the ABA's position in legal education as a "monopoly," invoking established antitrust principles relating to occupational licensing and criticizing the ABA's accreditation standards as overly costly and restrictive.2Whether the letter should be understood primarily as antitrust advocacy or at least partly as political commentary, it represents a significant moment in the intersection of antitrust law, professional licensing, industry associations, and US legal education.
I. The FTC Staff's Competition Concerns
Although the OPP/BOP recognizes that some conduct by professional associations can provide important benefits,3the letter notes that courts consistently warn that standard setting can easily become a tool for exclusion when dominated by participants with economic incentives to restrain competition.4The OPP/BOP believes that ABA accreditation of law schools illustrates this problem. For instance, rather than articulating minimum competency standards, the ABA often prescribes specific resource levels, faculty compositions, and pedagogical requirements.5The OPP/BOP argues that these standards reflect a preference for the traditional, high-cost model of legal education and hinder innovative or lower cost approaches that could expand access to legal services.6
In addition, the letter highlights that ABA is the nation's only recognized law school accreditor (more than 40 states rely on its decisions to determine bar eligibility) and it is composed primarily of legal academics, university administrators, and lawyers.7The letter notes that such structure and delegation creates inherent anticompetitive risks and undermines Texas's ability to set independent standards for entry into the legal profession.8
The letter also emphasizes ABA's past antitrust issues, noting that the ABA "has a long history of using its law school accreditation monopoly to harm competition."9>For instance, in 1995, the Department of Justice sued the ABA for allowing legal educators to impose rules related to faculty salaries, staffing, and resources that "unreasonably restrained competition" among law schools.10The case was settled through a consent decree that the ABA later violated, prompting the US District Court for the District of Columbia to issue an order in 2006 to enforce compliance and imposing monetary sanctions.11The OPP/BOP argues in the letter that despite this history, the ABA is "[u]ndeterred" and "continues to wield its law school accreditation monopoly" to harm competition by imposing unreasonable and costly standards that are irrelevant to "ensuring a baseline level of legal education."12Furthermore, it claims that the burdensome restrictions benefit faculty and administrators by "limiting how law schools may compete with each other and by discouraging new competitors."13By increasing the costs of legal education, it concludes that the burdensome requirements limit the supply of new lawyers and benefit "incumbent suppliers" – the ABA's members.14
II. Texas's Proposal and State Action Immunity
The Texas Supreme Court's proposal would remove ABA accreditation as a prerequisite and instead authorize the court to determine which law schools qualify.15Reclaiming this authority resolves a key state action concern.
Under Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, 445 US 97, 105 (1980), private actors should enjoy state action immunity only when the state clearly articulates the policy and actively supervises the implementation. The OPP/BOP contends that Texas does not actively supervise ABA's accreditation decisions.16By vesting accreditation authority in the Texas Supreme Court, rather than ABA, the state could eliminate the supervision gap and ensure that responsibility rests with a neutral public body whose members do not compete in the legal services market.17
III. Analysis
While the FTC's comments may be informed by political themes, including criticism of the ABA's imposition of "controversial ideological" curriculum and practices as requirements of accreditation, they are rooted in basic antitrust principles.18The broader message is consistent: delegating market entry decisions to private professional associations is increasingly disfavored.
The FTC's endorsement of Texas's proposed reform marks the most significant antitrust development in legal education in decades. If adopted, the rule could begin to weaken the ABA's control over accreditation and could open the door to new models of legal education, although schools would continue to have an incentive to seek ABA accreditation if they believe there are benefits – such as prestige – associated with it.19More broadly, the comments underscore the FTC's heightened scrutiny of professional licensing systems that grant unsupervised authority to private associations that are well-positioned to limit competition, especially new entry to markets. If the FTC sees the private association as imposing unnecessary ideological requirements for certification or accreditation, it is more likely to be a target for FTC scrutiny.
Footnotes
1 See FTC Staff Comment on Proposed Amendment to Rule 1 of the Rules Governing Admission to the Bar of Texas (Dec. 1, 2025), [hereinafter "FTC Staff Comment"]. Footnote 1 to the letter explains that "[it] does not necessarily represent the views of the Federal Trade Commission or of any individual Commissioner. The Commission has, however, voted to authorize the submission of this comment."
2 Id.
3 See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 US 492, 501 (1988).
4 See Am. Soc'y of Mech. Eng'rs v. Hydrolevel Corp., 456 US 556, 571 (1982).
5 See FTC Staff Comment at 7.
6 Id at 8.
7 FTC Staff Comment at 2.
8 Id.
9 Id. at 6.
10 Complaint ¶ 35, United States v. Am. Bar Ass'n, No. 95-cv-1211 (D.D.C. June 27, 1995), Dkt. No. 1, https://www.justice.gov/atr/case-document/file/485696/dl.
11 See United States v. Am. Bar Ass'n, 2006 US Dist. LEXIS 42645, at 2 (D.D.C. 2006).
12 FTC Staff Comment at 7.
13 Id. at 8.
14 Id.
15 Proposed Amendment to Rule 1 ¶ 6(d)–(e).
16 FTC Staff Comment at 3.
17 Id at 3, n.16.
18 Id at 7.
19 There are 197 US law schools that award a juris doctor degree that are accredited by the ABA. See https://www.americanbar.org/groups/legal_education/accreditation/approved-law-schools/. There are around 30 law schools in the United States that are not accredited by the ABA. See https://www.lsac.org/choosing-law-school/find-law-school/other-law-schools.
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