The American Bar Association enters The Bob Zadek Show chiefly as an institution whose accreditation power and task-force findings are invoked in arguments about two different problems: the growth of federal criminal law and the regulation of the legal profession itself. The excerpts do not describe the ABA’s internal governance, its history, or its membership.
The ABA task force on the federalization of crime
In an episode on criminal justice reform, Robert Alt of the Buckeye Institute describes an American Bar Association task force that in 1998 examined the federalization of crime. Alt characterizes it as a blue-ribbon panel with participants from across the political spectrum. The task force concluded that the body of federal criminal law was so large that no conveniently accessible complete list of the crimes existed. It then attempted to catalog them and arrived at well over 3,000 crimes. By 2007, roughly ten years later, Alt says the number had risen to over 4,450, an increase he puts at about 56 and a half crimes per year. Robert Alt of the Buckeye Institute: Power to the States (2017)
Alt places the ABA’s count within a broader argument about mens rea, the guilty mind requirement. He notes that a joint report by the Heritage Foundation, where he worked for Ed Meese, and the National Association of Criminal Defense Lawyers found 446 proposed non-violent criminal offenses in a single Congress, 57% of which had an inadequate criminal intent requirement; of those actually enacted, 64% contained inadequate mens rea requirements. He describes Ohio’s subsequent enactment of a requirement that a new crime without a criminal intent requirement is void as the strongest medicine of anyplace in the country. Robert Alt of the Buckeye Institute: Power to the States (2017)
Bob Zadek supplies the framing, distinguishing malum prohibitum offenses—bad because the legislature says so—from conduct that is inherently wrongful, and arguing that criminalizing otherwise innocent behavior defeats the purpose of criminal law. Alt illustrates the point with a hypothetical about a traveler who rents a car in Miami and is stopped with narcotics hidden in the spare tire, which he offers as an example of what Florida’s elimination of a criminal intent requirement for drug possession could produce. Robert Alt of the Buckeye Institute: Power to the States (2017)
Accreditation and the licensing regime
A 2021 episode devoted to Clifford Winston’s book Trouble at the Bar turns to the ABA’s role in legal education. Winston, identified as a senior fellow at the Brookings Institution, calls for complete deregulation of the legal profession at all levels. Under his proposal the American Bar Association would remain free to exist, but other bar associations would develop and compete with it, and lawyers would be free to join any, every, or no association. There would be no requirement of any sort of legal education and no control whatsoever; the market would determine who becomes a lawyer. Trouble at the Bar (2021)
Winston’s deregulatory vision extends to undergraduate law programs, on the reasoning that the material is not physics or advanced math, and to online and vocational law schools. Bar exams would be allowed but not required. He anticipates a broader, more heterogeneous group of practitioners, with prices and access to services reflecting that change, and specialized programs combining law with economics, social sciences, science, engineering, artificial intelligence and big data. He hopes such exposure makes lawyers less siloed and leads judges and justices to engage more openly with expert panels. Trouble at the Bar (2021)
Bob Zadek sets the stage by describing the existing scheme: lawyers in all 50 states are prohibited from practicing unless licensed; in most states a license requires attendance at an accredited law school; and law schools can be accredited only with what he calls the Good Housekeeping seal of approval from a regulatory or quasi-regulatory agency such as the American Bar Association. He asks who picked them, and states that he finds the requirement that two informed adults obtain government permission to transact business abhorrent. He then presses Winston on the broader adverse effects of the regime on non-lawyers, a question the excerpt breaks off before Winston answers. Trouble at the Bar (2021)
The ABA as a channel for lawyer volunteers
A third episode, on the founding of the Free Republic of Liberland, contains a single passing reference. Bob Zadek, describing his own years of practice, recalls that invitations often went out through the American Bar Association and related lawyer organizations asking for volunteers to help countries in Eastern Europe and Asia build a body of commercial law that would respect property rights and enforce contracts. He offers this as evidence that Vít Jedlička’s appeal for lawyers to help finalize a freedom-driven constitution would find an audience. The excerpt does not indicate whether the ABA itself organized such work or merely transmitted the invitations. Founding the Free Republic of Liberland (2021)
Across episodes
The ABA appears in three episodes, but the excerpts show no development of a single question across them. Alt uses an ABA task force’s catalog of federal crimes as evidence about overcriminalization; Winston and Zadek treat the ABA’s accreditation role as an obstacle to deregulating the profession; and Zadek mentions the ABA once as a conduit for volunteer legal assistance abroad. No guest responds to another’s characterization, and the later episodes do not revisit the task force or its crime count.
What the sources do not cover
The excerpts say nothing about the ABA’s founding, its governance, its membership, its budget, or its positions on legislation. They do not describe how accreditation decisions are made or which body within the ABA makes them, and they do not name any ABA official. The Liberland excerpt leaves open whether the ABA organized the commercial-law volunteer work Zadek describes or merely passed along the invitations.