FTC Staff Comment Before the Supreme Court of Texas Concerning Proposed Amendment to Rule 1 of the Rules Governing Admission to the Bar of Texas

December 1, 2025
UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
Supreme Court of Texas
P.O. Box 12248
Austin, Texas 78711
By electronic submission
Re: 	Proposed Amendment to Rule 1 of the Rules Governing Admission to the Bar
of Texas
To the Honorable Chief Justice and Justices of the Supreme Court of Texas:
We are the Directors of the Federal Trade Commission’s (FTC or Commission) Office of
Policy Planning and Bureau of Competition. The Office of Policy Planning engages with state
legislatures, regulatory boards, and other government officials on competition and consumer
protection issues to champion the interests of the American people. The Bureau of Competition
enforces America’s antitrust laws. Competition is the lifeblood of the American economy, spurring
innovation, expanding output and employment, lowering prices, and improving quality and access
to goods and services. Promoting competition and enhancing consumer choice are central goals
for the Commission. Eliminating regulatory barriers that raise prices, prop up unfair monopolies,
or otherwise restrain the competitive economy is key to achieving these goals.
We write this letter to advance those objectives1 and respond to the Texas Supreme Court’s
(“Court”) invitation for comment on the proposed amendments to Rule 1 of the Rules Governing
Admission to the Bar of Texas (“Proposed Amendment”). 2 The Commission has substantial
experience evaluating the competitive effects of professional licensing and related restrictions
across the U.S. economy.3 Through its advocacy program, the Commission regularly advises states
and localities regarding the competitive effects of various professional and occupational licensing
requirements.4 The Commission’s prior advocacies highlight the risks of entrusting market
1 This comment expresses the views of staff of the FTC’s Office of Policy Planning and Bureau of Competition. 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 Preliminary Approval of Amendments to Rule 1 of the Rules Governing Admission to the Bar of Texas, Misc.
Docket No. 25-9070, 2025 LX 489157, ¶ 4 (Tex. Sup. Ct. Sep. 26, 2025) [hereinafter Proposed Amendment]; Order
Inviting Comments on the Law School Accreditation Component of Texas’s Bar Admission Requirements ¶ 1, Misc.
Docket No. 25-9018, 2025 LX 215452 (Tex. Sup. Ct. Apr. 4, 2025) [hereinafter Order Inviting Comments].
3 See, e.g., MAUREEN K. O HLHAUSEN , F ED . T RADE C OMM ’ N , P REPARED S TATEMENT OF T HE F EDERAL T RADE
COMMISSION ON COMPETITION AND O CCUPATIONAL L ICENSURE BEFORE THE J UDICIARY C OMMITTEE S UBCOMMITTEE
ON REGULATORY REFORM , C OMMERCIAL AND A NTITRUST L AW 10–15 (Sep. 12, 2017) [hereinafter Ohlhausen House
Statement], 	https://www.ftc.gov/system/files/documents/public_statements/1253073/house_testimony_licensing_
and_rbi_act_sept_2017_vote.pdf.
4 See, e.g., MAUREEN K. O HLHAUSEN , F ED . T RADE C OMM ’ N , P REPARED S TATEMENT OF THE F EDERAL T RADE
COMMISSION BEFORE THE U NITED S TATES S ENATE C OMMITTEE ON THE J UDICIARY S UBCOMMITTEE ON A NTITRUST,

2
participants to act as gatekeepers for their profession or to set the terms on which they and their
fellow competitors may compete.5
Based on this experience, we endorse the Proposed Amendment and commend that it
would eliminate the current rule’s delegation of authority to the American Bar Association (ABA).
The ABA should not serve as a gatekeeper to a critical aspect of admission to the legal profession.
Such control by the ABA is inimical to the principles on which competition law rest. The ABA is
dominated by practicing attorneys, who have strong interests in limiting competition for legal
services. As such, the current rule raises serious competitive risks by so broadly delegating to the
ABA the state’s authority to set eligibility requirements for admission to the Texas bar. It
effectively gives the ABA, an organization that has previously flouted the rule of law it purports
to promote, the ability to exclude market participants who would compete with its members. We
encourage the Court to reclaim its authority to expand opportunities for qualified individuals to
provide legal services to the Texas public as envisioned by the Proposed Amendment.
I. 	The Proposed Amendment would end the ABA’s monopoly control over whether
a Texas bar applicant’s legal education is sufficient for admission.
The Proposed Amendment revokes the power of the ABA and its Council of the Section
of Legal Education and Admissions to the Bar (“ABA Council”) to dictate the education required
to take the bar exam and practice law in Texas. The ABA is the largest voluntary professional
organization in the world, with its “mission . . . [as] the national representative of the legal
profession,” serving a membership predominantly consisting of practicing attorneys. 6 The ABA
Council has twenty-one members and is dominated by current or former law school or other
university administrators or faculty; the remainder include practicing lawyers, judges, a law
student, and a Senior Fellow at a trade association that represents universities’ interests.7
The Texas Legislature authorized the Texas Supreme Court to adopt rules on eligibility for
a license to practice law, including requiring study at an “approved law school.”8 In line with this
direction, the Texas Bar Admission Rules require that an applicant obtain a degree from an
COMPETITION P OLICY AND C ONSUMER R IGHTS “LICENSE TO COMPETE : O CCUPATIONAL LICENSING AND THE S TATE
A CTION D OCTRINE” 1–2 (Feb. 2, 2016) [hereinafter Ohlhausen Senate Statement], https://www.ftc.gov/system/files/
documents/public_statements/912743/160202occupationallicensing.pdf; Selected Advocacy Relating to Occupational
Licensing, F ED. TRADE COMM ’ N, https://www.ftc.gov/policy/advocacy-research/advocacy/economic-liberty/selected-
advocacy-relating-occupational-licensing (linking to over 20 such advocacies).
5 See Ohlhausen Senate Statement, supra note 4, at 1 (“[W]hen regulatory authority is delegated to a board composed
of members of the occupation it regulates,” their “private interests may lead to . . . restrictions that discourage new
entrants, deter competition among licensees and from providers in related fields, and suppress innovative products or
services that could challenge the status quo.”).
6 Consumer FAQs, A.B.A., https://www.americanbar.org/groups/professional_responsibility/resources/resources_
for_the_public/consumer_faqs/ (last visited Nov. 29, 2025).
7 Section of Legal Education and Admissions to the Bar Leadership, A.B.A., https://www.americanbar.org/groups/
legal_education/about/leadership/ (last visited Nov. 26, 2025) (showing the professional titles of the 21 Council
members, with 14 listing current or former positions at law schools or universities and Daniel Madzelan listing his
position with the American Council on Education). The ABA’s Section of Legal Education and Admissions to the Bar
has over 17,000 members, including practicing lawyers, judges, and legal educators. About the Section of Legal
Education and Admissions to the Bar, A.B.A., https://www.americanbar.org/groups/legal_education/about/ (last
visited Nov. 26, 2025).
8 See TEX. G OV ’ T CODE A NN . §§ 82.022–82.024 (West 2025).

3
“approved law school.”9 Rule 1 currently defines “approved law school” to be “a law school
approved by the American Bar Association.”10 Consequently, the current rules give the ABA
control over whether a person may seek admission to the Texas bar. The Court does not appear to
actively supervise the ABA’s exercise of this delegated authority.11
The Proposed Amendment eliminates the reference to ABA approval in Rule 1, instead
defining an “approved law school” to be “a law school approved by the Supreme Court.”12 The
Court’s action wrests away the ABA’s control over bar eligibility, making the Court, rather than
the ABA, the final arbiter of which law schools provide a legal education sufficient to qualify their
graduates for admission to the Texas bar. In tentatively approving this amendment, the Court also
promulgated a list of currently approved schools. Importantly, the Court declared that loss of ABA
accreditation would not itself mandate removal from that list, and expressed its intent to develop
an approach to consider approval of schools not accredited by the ABA. 13
As it stands, the ABA has a monopoly on the accreditation of American law schools. It is
the sole law school accreditor recognized by the Department of Education, and the only one to
operate across multiple states. The ABA’s monopoly power is entrenched by rules and regulations
in over forty states that, like Rule 1 in Texas, rely on ABA accreditation to determine eligibility
for their respective bars. Although some commenters have called for the Court to engage with the
ABA in lieu of a rule change, 14 such efforts would fall well short of active supervision and would
likely have little effect on the ABA’s accreditation standards. The ABA Council, like many
entrenched monopolists, is notoriously unresponsive to outside pressure.15 And other states that
rely on the ABA may oppose the Court’s views on accreditation—though we are encouraged that,
like Texas, other states are considering changes to reduce or eliminate their reliance on ABA
accreditation.16
9 See TEX. R. G OV . BAR A DMIS . §§ 2(a)(4), 3(a) (2025).
10 Id. § 1(a)(4). There is a limited exemption to the requirement of graduation from an ABA-approved law school for
applicants who are admitted to the bar and have actively practiced law for three years in another state. See id. § 13.
11 In order for conduct to qualify for state action immunity from antitrust liability, state officials must actively
supervise the allegedly anticompetitive actions. See infra Part III.
12 Proposed Amendment, supra note 2, at 5.
13 Id. ¶ 6(d)–(e).
14 See, e.g., Letter from Barry Currier to Justices of the Supreme Court of Texas, Comments on the Court’s Reliance
on the ABA Law School Accreditation System 3 (June 23, 2025) [hereinafter Barry Currier Comment] (on file with
Fed. Trade Comm’n) (in response to Order Inviting Comments, supra note 2).
15 See Daniel B. Rodriguez, ABA Accreditation Council Is Playing a Game of Chicken, D ANIEL B. RODRIGUEZ (Aug.
20, 2025), https://danielbrodriguez.substack.com/p/aba-accreditation-council-is-playing (noting the ABA “Council’s
effort to run roughshod over the diverse constituencies,” including state bar authorities, “who have expressed doubts
about the wisdom of this proposal, a proposal that will certainly impose burdens of time and treasure at a moment in
which the state of legal education and the legal profession in the U.S. is in serious flux”).
16 See Jim Ash, Court Workgroup Explores Alternatives to ABA Role in Bar Admissions, F LA. BAR (Oct. 31, 2025),
https://www.floridabar.org/the-florida-bar-news/court-workgroup-explores-alternatives-to-aba-role-in-bar-
admissions/; Supreme Court of Ohio Establishes Advisory Committee to Review Law School Accreditation Process,
COURT N EWS O HIO (July 17, 2015), 	https://www.courtnewsohio.gov/happening/2025/LawSchoolAccreditation
_071725.asp.

4
II. 	Professional boards or trade associations often have strong incentives to restrain
competition and may misuse delegated state power to exclude competitors.
Antitrust law has long recognized that professional boards and trade associations frequently
have inherent incentives to undermine competition. As Adam Smith observed, “[p]eople of the
same trade seldom meet, even for merriment or diversion, but the conversation ends in a conspiracy
against the public or in some contrivance to raise prices.”17 Professional and trade associations
thus have often been found to violate the antitrust laws when they enter into agreements restricting
competition among themselves,18 or excluding others from competition.19
Some conduct by professional associations can provide important benefits. For example,
the adoption of voluntary standards governing product safety or professional qualifications,
promulgated with “meaningful safeguards” around the process for developing such standards, can
have “significant procompetitive advantages.”20 Voluntary industry standards are therefore
generally assessed under the rule of reason, which weighs a restraint’s procompetitive and
anticompetitive effects.21 Yet courts recognize the inherent anticompetitive incentives in many
standards organizations that may lead to abuse of the standards process, particularly where “many
of [the standards organization’s] officials are associated with members of the industries” it
regulates.22
The potential for competitive harm increases when state legislation or regulation gives the
force of law to restrictions on competition advanced by professional or trade associations. Antitrust
law respects the authority of states to promote their policy goals through regulation, even when
such actions inhibit competition. It thus affords immunity from antitrust liability when two
conditions are met: (1) the challenged restraint must be “clearly articulated and affirmatively
expressed as state policy,” and (2) “the policy must be ‘actively supervised’ by the State itself.”23
There is a particular danger of competitive harm when a state professional board is composed of
unsupervised industry competitors. Thus, in North Carolina State Board of Dental Examiners v.
FTC, the Supreme Court refused to extend immunity to the decision of a state board dominated by
17 United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1370 (5th Cir. 1980) (quoting Note, Arbitrary Exclusion
from Multiple Listing: Common Law and Statutory Remedies, 52 CORN. L.Q. 570 (1967)). See A DAM S MITH, A N
I NQUIRY INTO THE N ATURE AND CAUSES OF THE W EALTH OF N ATIONS 55 (Great Books 1952) (1776)).
18 See, e.g., Goldfarb v. Va. State Bar, 421 U.S. 773, 783 (1975) (holding that a county bar association rule establishing
a minimum fee schedule enforced via potential disciplinary action was “a classic illustration of price fixing” by the
state bar); FTC v. Ind. Fed’n of Dentists, 476 U.S. 447, 456–65 (1986) (affirming an FTC order that an Indiana
Federation of Dentists policy requiring its members to withhold x-rays violated the antitrust laws).
19 See, e.g., E. States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 611–14 (1914) (affirming Sherman
Act violation against associations of retail lumber dealers who conspired to prevent competition from wholesale
dealers); Fashion Originators’ Guild, Inc. v. FTC, 312 U.S. 457, 463–65 (1941) (affirming FTC order that a trade
association of garment manufacturers cease an organized boycott designed to thwart the sale of lower-priced garments
that are similar to the trade association members’ original styles).
20 Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 501 (1988) (quoting Am. Soc’y of Mech. Eng’rs
v. Hydrolevel Corp., 456 U.S. 556, 572 (1982)); see also, Ohlhausen Senate Statement, supra note 4, at 1 (stating that
the Commission “recognize[s] that occupational licensing can offer many important benefits,” such as “protect[ing]
consumers from health and safety risks”).
21 See, e.g., Allied Tube, 486 U.S. at 500–01; Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284 (5th
Cir. 1988).
22 Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556, 571 (1982).
23 Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980) (quoting City of Lafayette v.
La. Power & Light Co., 435 U.S. 389, 410 (1978) (opinion of Brennan, J.) (footnote omitted)).

5
licensed dentists to adopt a regulation prohibiting dental hygienists from offering teeth whitening
services.24
The Commission has emphasized harm to competition arising when “entrants are
effectively required to obtain permission from incumbent competitors to enter or expand within a
particular 	market.”25 	These 	harms 	from 	“unnecessary 	occupational 	regulation” 	include
“dampening incentives for innovation in products, services, and business models” and “creating
barriers to entry or repositioning by providers.”26 Legal scholars agree and stress the inherent
dangers of delegating occupational licensing decisions to boards composed largely of incumbent
members of the profession: these boards can serve as “cartels by another name” that are “deputized
to regulate and to outright exclude their own competition.”27 This “inherent conflict of interest and
a risk of anticompetitive abuse” arises “in any accreditation program where market participants
wield the power to exclude”—“for even the most selfless and well-intentioned decision makers”
may be influenced when decisions “direct[ly] implicat[e] . . . their own status . . . and well-being.”28
In engaging with state officials regarding occupational licensing, the Commission “ask[s]
that they consider whether: (1) any licensing regulations are likely to have a significant adverse
effect on competition; (2) those restrictions are targeted to address actual risks of consumer harm;
and (3) the restrictions are narrowly tailored to minimize burdens on competition, or whether less
restrictive alternatives are available.”29 This inquiry is designed to “help alleviate unnecessary
licensing burdens” that harm competition.30 When professional licensing restrictions fall short of
these 	principles, 	they 	may 	not 	serve 	the 	public 	interest—they 	may 	instead 	further 	the
anticompetitive goals of market participants who influence and set the standards. Based on these
principles, the Commission has argued against restrictions that would undermine competition by
imposing certification or educational requirements on suppliers beyond what is needed to properly
perform the service. For example, the Commission has frequently advised against restrictions on
those permitted to provide medical or dental services that would exclude qualified suppliers.31 The
24 574 U.S. 494, 507 (2015).
25 See Maureen K. Ohlhausen & Gregory P. Luib, Brother, May I?: The Challenge of Competitor Control over Market
Entry, 4 J OURNAL OF A NTITRUST ENF ’ T 111, 111 (2016); Ohlhausen House Statement, supra note 3, at 3
(“Occupational regulation can be especially problematic when regulatory authority is delegated to a board controlled
by active market participants,” since “there is a risk that the board’s decisions will serve the private economic interests
of its members, not the policies of the state or the well-being of its citizens.”).
26 Ohlhausen Senate Statement, supra note 4, at 1.
27 Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?,
162 U. P A. L. REV. 1093, 1093–94 (2014). The authors contend that “[l]icensing boards are largely dominated by
active members of their respective industries who meet to agree on ways to limit the entry of new competitors.” Id. at
1095–96.
28 Marina Lao, Discrediting Accreditation?: Antitrust and Legal Education, 79 W ASH . U. L. Q. 1035, 1036–37 (2001).
29 Ohlhausen House Statement, supra note 3, at 4.
30 Maureen Ohlhausen, Acting Chairman, Fed. Trade Comm’n, Transcript of the Economic Liberty Taskforce
Roundtable: The Effects of Occupational Licensure on Competition, Consumers and the Workforce: Empirical
Research and Results 4 (Nov. 7, 2017), https://www.ftc.gov/system/files/documents/public_events/1252903/
11_07_2017_the_effects_of_occupational_licensure_transcripts.pdf.
31 See, e.g., F ED. TRADE C OMM’ N, P OLICY P ERSPECTIVES : C OMPETITION AND THE R EGULATION OF A DVANCED
P RACTICE N URSES 	(2014), 	https://www.ftc.gov/system/files/documents/reports/policy-perspectives-competition-
regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf (cautioning against restricting the scope of practice
of advanced practice registered nurses or subjecting them to excessive physician supervision); Fed. Trade Comm’n,
Comment Letter on Likely Competitive Impact of House Bill 684 to Amend GA Code § 43-11-74 (Jan. 29, 2016),

6
Commission has also recommended caution in imposing costly educational requirements to qualify
for professional licensure.32
III. 	The ABA’s control over law school accreditation and bar eligibility may stifle
competition among law schools and among lawyers.
The above principles inform our strong support of the Court’s Proposed Amendment,
which eliminates the current problematic delegation of authority to the ABA to dictate which law
schools adequately prepare their graduates to practice law in Texas. The ABA, unfortunately, has
a long history of using its law school accreditation monopoly to harm competition. Thirty years
ago, the Department of Justice (DOJ) brought a Sherman Act complaint against the ABA and
challenged conduct that dated back to 1973.33 The DOJ alleged that the ABA allowed “[l]egal
educators” to capture the accreditation process, “at times act[ing] as a guild that protected the
interests of professional law school personnel.”34 The complaint stated that ABA “salary standards
and their application … unreasonably restricted competition in the law school labor market and”
forced accredited schools to “ratchet[] up law school salaries.” 35 According to the DOJ, other
restrictions “deterr[ed] effective competition from [non-ABA-accredited] law schools.”36 The
ABA settled, resolving the lawsuit through a consent decree.37 In 2006, the U.S. District Court for
the District of Columbia found that “on multiple occasions the ABA ha[d] violated clear and
unambiguous provisions” of that consent decree; it ordered the ABA to comply and pay $185,000
to compensate the DOJ for the costs of the investigation.38
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-georgia-state-senator-valencia-
seay-concerning-georgia-house-bill-684/160201gadentaladvocacy.pdf (supporting a bill permitting dental hygienists
to provide certain services without the direct supervision of a dentist).
32 William J. Baer, Bureau of Competition Director, Fed. Trade Comm’n, Comment Letter on Washington
Administrative Code 4-25-710, § IV (Mar. 18, 1996), https://www.ftc.gov/sites/default/files/documents/advo
cacy_documents/ftc-staff-comment-honorable-jean-silver-concerning-washington-administrative-code-4-25-710-
require/v960006.pdf (cautioning that requiring 150 hours of undergraduate coursework to sit for the CPA exam could
“increase the cost of entry and may raise prices to consumers of CPA services,” and recommending that the state “seek
persuasive evidence that, notwithstanding these concerns, the net effect of the amendment on consumers would be
positive”).
33 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.
34 Competitive Impact Statement at 2, 4, United States v. Am. Bar Ass’n, No. 95-cv-1211 (D.D.C. June 27, 1995),
Dkt. No. 4, https://www. justice.gov/atr/case-document/file/485691/dl.
35 Complaint, supra note 33, ¶ 16.
36 Competitive Impact Statement, supra note 34, at 6–7.
37 The consent decree prohibited standards relating to compensation paid to law school faculty and administrators,
restricted the collection and dissemination of information regarding compensation, and eliminated certain restrictions
on accepting transfer credits from state-accredited law schools or enrolling graduates of such schools in post-J.D.
programs. It also included structural provisions designed to insulate the ABA Council’s conduct from influence by
interested parties such as legal educators. See United States v. Am. Bar Ass’n, 934 F. Supp. 435, 436–37 (D.D.C.
1996). The decree was modified in 2001 to limit the ability of the ABA House of Delegates to overrule ABA Council
decisions, in order to conform with Department of Education regulations. United States v. Am. Bar Ass’n, 135 F.
Supp. 2d 28, 30, 32 (D.D.C. 2001).
38 United States v. Am. Bar Ass’n, 2006 U.S. Dist. LEXIS 42645, at *2 (D.D.C. 2006); see Petition by the U.S. for an
Order to Show Cause Why Defendant ABA Should Not Be Found in Civil Contempt ¶¶ 11–17, United States v. Am.
Bar Ass’n, No. 95-cv-1211 (D.D.C. June 23, 2006), Dkt. No. 101.

7
Undeterred, the ABA nonetheless continues to wield its law school accreditation monopoly
in a manner that harms competition in other ways, such as imposing overly rigid and costly
requirements. When it strikes the right balance, accreditation can be procompetitive and serve the
state’s interest in “ensur[ing] that new lawyers enter practice with a reasonable degree of
preparation.”39 However, as Dean Chesney noted in his comment on the Proposed Amendment,
although this balance requires solely that “law schools . . . be held to baseline quality standards,”
the ABA’s excessive requirements instead “promot[e] . . . its conception of best practices and
desirable educational policies.”40 This concern is not new. Over twenty years ago, Professor
Marina Lao scrutinized the ABA’s accreditation standards. She concluded that they were
“unreasonable and, therefore, anticompetitive,” because they “reflect the profession’s preference
for the elite-model law school,” and exclude schools providing a “nonelite legal education [that]
is perfectly adequate for many types of legal practice.”41 Most troubling is that in recent years, the
ABA has even dictated that all law schools enact measures that conform to controversial
ideological views prevalent among the legal elitists, notwithstanding public opposition and the
measures’ irrelevance to ensuring a baseline level of legal education.42 One such example is the
ABA’s imposition of unlawful DEI requirements on American law schools as a requirement of
accreditation.43
Absent its monopoly bolstered by delegated state power, the ABA’s insistence on an
expensive, ideologically-tainted legal education might not raise competitive concerns. It could
even offer a valuable signal to prospective law students seeking such an experience. If other law
school accreditors existed, schools that wished to compete by offering a differentiated, more
affordable product could try those ABA alternatives. Competitive market forces could thus spur
innovation in the stagnant market for legal education. And competition between accreditors could
discipline any attempts by the ABA to impose costs or ideological mandates that serve little
educational purpose. Even the ABA’s allies, including a former manager of the ABA Council,
recognize that alternative accreditors could offer valuable options to “[s]chools that think that the
current ABA process is too expensive, too slow, too burdensome, or too intrusive on matters that
should be left to schools to determine.”44 But no other law school accreditors exist, and the ABA’s
39 Letter from Robert Chesney, Dean of the University of Texas School of Law, to the Honorable Chief Justice and
Justices of the Supreme Court of Texas § 2(a) (June 30, 2025) (on file with Fed. Trade Comm’n) (in response to Order
Inviting Comments, supra note 2).
40 Id. § 2(b). Despite its contrary actions, the ABA also professes to recognize that accreditation standards should only
set a minimum baseline. Its first “Core Value” states: “The Standards are minimum standards for ensuring a quality
legal education, but law schools should seek to exceed the Standards consistent with their mission and goals.” Core
Principles 	and 	Values 	of 	Law 	School 	Accreditation, 	A.B.A. 	1 	(Aug. 	2025), 	https://www.
americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/2025/core-principles-
and-values-of-law-school-accreditation.pdf (last visited Nov. 26, 2025).
41 Lao, supra note 28, at 1102.
42 	See, 	e.g., 	John 	O. 	McGinnis, 	Deregulating 	Legal 	Education, 	LAW & LIBERTY 	(Feb. 	27, 	2025),
https://lawliberty.org/deregulating-legal-education/. This concern was echoed in many of the comments submitted in
response to the Court’s April 4, 2025 order. See, e.g., Letter from Josh Blackman to Supreme Court of Texas (June
30, 2025) (on file with Fed. Trade Comm’n) (in response to Order Inviting Comments, supra note 2, attaching
contributions to a symposium by himself, Derek T. Muller, and Ilya Shapiro addressing the issue); Letter from
Jonathan R. Zell to Supreme Court of Texas (Apr. 16, 2025) (on file with Fed. Trade Comm’n) (in response to Order
Inviting Comments, supra note 2).
43 See McGinnis, supra note 42; Letter from Jonathan R. Zell to Supreme Court of Texas, supra note 42.
44 Barry Currier Comment, supra note 14, at 4.

8
monopoly remains secure—shielded from competition, in part, by many states’ delegations of
authority to it.
The ABA’s entrenched monopoly harms competition and consumers by mandating that
every law school follow an expensive, elitist model of legal education. These burdensome
restrictions serve the law school and university faculty and administrators on the ABA Council by
limiting how law schools may compete with each other and by discouraging new competitors.45
For example, the ABA’s onerous mandates impose high costs on potential new law schools and
may thwart their entry. They also inhibit the development and introduction of innovative new
programs that could lower costs and boost the supply of law school seats. Additionally, the ABA’s
costly restrictions serve the interests of the practicing lawyers that largely comprise the ABA’s
membership. By increasing the costs of a legal education, the ABA’s excessive accreditation
standards limit the supply of new lawyers.46 With fewer lawyers available, consumers may struggle
to access legal services and pay more dearly when they do. Only the incumbent suppliers, the
ABA’s members,47 benefit.
The members of the Court have been appointed to a high position of public trust, and
their primary employment does not involve competing for the provision of legal services or legal
education. Therefore, the state’s delegation of authority over bar eligibility to the Court is
appropriate and consistent with principles that apply when analyzing state action immunity.48 It
is the current rule’s further delegation of responsibility to the ABA and the ABA Council to set
educational requirements that creates clear, anticompetitive conflicts of interests.
45 ABA Council members from colleges or universities without law schools have an interest in the ABA’s insistence
that law school students obtain an undergraduate degree prior to starting law school.
46 See, e.g., Baer, supra note 32, § III (explaining that an increase in the course work hours required for CPA exam
eligibility can increase the costs of entry into the profession, and therefore serve the “economic self-interest” of
incumbent suppliers); Press Release, Fed. Trade Comm’n, FTC Announces Investigation of American Medical
Association (Apr. 13, 1976) (on file with Fed. Trade. Comm’n) (announcing that the FTC had “commenced an
investigation to determine whether the American Medical Association may have illegally restrained the supply of
physicians and health care services through activities relating to . . . accreditation of medical schools and graduate
programs”).
47 The ABA and some commentators argue that the ABA Council is “independent” of the main ABA and that this
“independence” insulates the ABA Council’s accreditation standards from the broader ABA’s interests. See Letter
from the Council of the American Bar Association Section of Legal Education and Admissions to the Bar to Supreme
Court of Texas, at 9–10 (June 30, 2025) (on file with Fed Trade Comm’n) (in response to Order Inviting Comments,
supra note 2); Barry Currier Comment, supra note 14, at 2. The consent decree in United States v. American Bar
Association did lead to some formal restrictions on how the ABA Council operates. However, the broader ABA House
of Delegates still has a formal role overseeing the ABA Council. Under the decree as modified in 2001, the ABA
House of Delegates has the authority to review Council decisions and remand for further consideration, though it must
accept ABA Council decisions after two remands. See generally United States v. Am. Bar. Ass’n, 135 F. Supp. 2d 28
(D.D.C. 2001). Further, the ABA Council is dominated by interested parties—higher education faculty, their trade
association, and practicing lawyers—and is also subject to capture by the attorneys who make up most of the ABA’s
Section of Legal Education and Admission to the Bar. See supra Part I.
48 See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 359–360 (1977) (distinguishing Goldfarb v. Va. State Bar,
421 U.S. 773, 790 (1975), on grounds that Goldfarb involved activities of bar associations that were not required by
Virginia Supreme Court rules whereas Bates involved challenged conduct that was the “affirmative command of the
Arizona Supreme Court”).

9
IV. 	Conclusion
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.”49 The ABA’s standards for accreditation appear to go far
beyond what is reasonably necessary to assure adequate preparation for the practice of law in
Texas, increasing the cost of a legal education. The current rule therefore likely causes Texas to
forgo admitting many potentially qualified lawyers who could provide needed legal services to the
Texas public.
The Proposed Amendment is an important step in weakening the ABA’s enduring
monopoly and resulting power to impose costly, overly burdensome law school accreditation
requirements. It is no coincidence that in its 1995 lawsuit challenging the ABA’s anticompetitive
conduct, the DOJ stressed that the ABA’s power over law schools comes, in part, from state
mandates: “ABA approval is critical to the successful operation of a law school” because the “bar
admission rules in over 40 States require graduation from an ABA-approved law school in order
to satisfy the legal education requirement for taking the bar examination.”50 Thirty years later, little
has changed yet. The Proposed Amendment is a laudable first step. We commend the Texas
Supreme Court for its initiative to disrupt the anticompetitive status quo and encourage other states
to take similar steps.
Sincerely,
/s/ Clarke T. Edwards 	/s/ Daniel Guarnera
Clarke T. Edwards, Acting Director 	Daniel Guarnera, Director
Office of Policy Planning 	Bureau of Competition
49 Proposed Amendment, supra note 2, ¶ 2.
50 Competitive Impact Statement, supra note 34, at 2.