Rethinking Self-Regulation: Antitrust Perspectives on Bar Governance Activity

This article discusses the American bar’s unfortunate over-protection against the unauthorized practice of law and the ways that the Supreme Court’s recent ruling in North Carolina Board of Dental Examiners v. Federal Trade Commission suggests that their anticompetitive practices may face new hurdles. The article surveys the background of federal antitrust doctrine and describes the scope and rationale of the Dental Examiner’s ruling. The article then offers some thoughts on the implications of the decision for bar regulatory activities, including a recent example involving the North Carolina bar’s UPL action against LegalZoom. We close with some suggestions about how the bar should proceed going forward, concluding that the Supreme Court may have mapped a route forward for saner regulation of the market for legal services. If we are right, society as a whole will benefit.