The Volokh Conspiracy

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New Essay in the ABA Journal: The ABA needs ideological diversity to ensure its future

"If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence."


Last month, the ABA Journal invited me to write an essay on the topic of my choice. I'll admit, at first I was skeptical. The ABA Journal has historically skewed left, and represents an organization that skews even harder left. Yet, the editors stressed that they were looking to improve the range of viewpoints expressed in the ABA Journal. I took them up on their kind offer. And my first essay (hopefully not the last) takes on the American Bar Association head on. It is titled, "The ABA needs ideological diversity to ensure its future."

A generation ago, nearly half of the lawyers in the United States were members of the American Bar Association. Today, that number is probably closer to 20%, if not lower. This decline is often attributed to an unwillingness of young attorneys to join civic organizations. Or perhaps lawyers no longer see tangible benefits from membership. Or maybe the dues are too high. All of these explanations ignore the elephant in the room—and I mean elephant in the figurative and political sense. The American Bar Association consistently skews to the political left. And this progressive mandate alienates conservative lawyers.

For example, I discuss ABA Model Rule 8.4(g), ABA diversity mandates for CLE, as well as ABA proposals to eliminate the LSAT requirement. I explain the risk that the ABA faces:

Historically, the ABA has enjoyed a position of privilege and power in our polity. That authority was due, in large part, to the ABA's capacity to broadly represent the legal profession. But there is no guarantee this distinguished role continues.

Indeed, the ABA's progressive slant risks its own obsolescence by alienating members.

Perhaps the most important risk is that a future Republican administration could rescind the ABA's accreditation authority:

A future Republican administration may deem the ABA a poor steward of its accreditation power, and the Department of Education can seek other options. Or the federal government could authorize the states to choose their own accreditation authority for legal education. State supreme courts can adopt their own standards and join interstate compacts to ensure bar reciprocity. If the ABA continues to impose an ideological set of standards on law schools nationwide, the federal government can respond by revoking the ABA's authority.

The ABA places a lot of focus on racial and gender diversity. There should be a similar focus on ideological diversity. If the ABA fails to heed this advice, it will fade away:

If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence. Model Rules will not be adopted. Evaluations of judicial nominees will be ignored. The accreditation monopoly will cease. And so on. A decline in membership will be the least of the ABA's problems. The ABA can either adapt to a new political reality or fade away like the guilds of yore.

Again, I'm grateful for the opportunity to write for the ABA Journal, which has a wide readership. My next writing, if I am so lucky to be invited back, will be about campus protests and DEI.