Law Schools

Mixed Feelings Over Proposal To End Bar Exam

Fixing the legal profession is going to require change, but this might go too far.

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The pandemic brought all the problems with the bar exam and state licensing into focus. Issues that had bubbled among a small clique of legal observers for years exploded in a white hot flame of disaster over the last year. The over-reliance on limited administrations exacerbated health and technology problems, the disconnect between the test and any conception of minimum competency frustrated efforts to promote open book options to cut back on technical obstacles (like those that arbitrarily flagged one-third of applicants as cheaters in California), and the out-of-control power of state regulators went on full display as they threatened to refuse licenses to critics.

A Wall Street Journal op-ed yesterday by Clifford Winston of the Brookings Institute, citing work he’s done with co-authors David Burk and Jia Yan for the book Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform (affiliate link), took aim at the bar exam and the state licensure process. But he’s going a lot further than diploma privilege…

Congress may soon strengthen the antitrust enforcement powers of the Biden administration’s Justice Department. The department should use those powers to eliminate the American Bar Association’s monopoly in determining what constitutes an acceptable legal education and state licensing requirements, which restrict the supply of lawyers.

There’s a lot to be said for his argument and ultimately it’s exciting that resistance to the bar exam and enthusiasm for reforming the legal profession has made it into the pages of the Wall Street Journal. The country has a pronounced shortage of attorneys serving key sectors. Prospective Biglaw ranks may be swelled, but the rest of the country lacks reasonable access to attorneys. “One study by the National Center for State Courts found that 75% of civil matters in major urban areas had at least one self-represented party,” according to the article, and the access to justice problem has blown past the poor and placed services outside the reach of the middle class in many cases.

Eliminating both the ABA’s monopoly control of legal education and states’ licensing requirement would allow alternative legal education programs to flourish, including vocational and online courses that could be completed in less than a year and college programs that offer a bachelor’s degree in law. Graduates of those programs could expand the availability of effective, low-cost civil legal services. Three-year law schools would be forced by the new competition to reduce tuition and the time to graduate. More J.D.s would be free to pursue a career in public-interest law if they were less encumbered by law school debt.

Three-year law school is, at present, an expensive waste that pushes graduates toward higher-paying jobs exacerbating the justice gaps described. But despite harboring a healthy share of skepticism about how the ABA performs its role in accrediting legal education, I can’t get behind removing them — or someone filling their prescribed role — from the process.

If there’s been a failing of the ABA it’s been the fact that it lacks the requisite strength to police subpar law schools siphoning off student funds and then leaving graduates twisting in a jobless void. The status quo may be the worst of all possible worlds with the ABA championing costly and anachronistic models, but with its watchdog powers functionally blunted, we have a preview of the harms of a deregulated environment. My argument for diploma privilege rests upon strengthening regulatory power to hold law schools accountable to provide minimum competency education, thus making the bar exam unnecessary.

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Which, of course, tracks the history of the bar exam, a test originally devised to measure the competency of those without a formal legal education. It would become weaponized in the 19th century as a means of closing off the profession to Black applicants despite earning law degrees. If the bar exam were to persist as an alternative avenue to practice for those wishing to avoid crushing law school debt by taking their chances with the test, that’s one thing. But opening the door to fly-by-night vocational schools turning loose attorneys on the public unchecked would make the fear-mongering of state licensing authorities — comically overblown in the status quo — pretty much a reality.

The lesson of the past 40 years or so is that the answer to poorly regulated industries is more thoughtful regulation and not deregulation. We’ve watched deregulation ruin cable television — a harm that’s metastasized into kneecapping broadband, which then got a double hit during years without net neutrality. We’ve watched it transform the airline industry into a too big to fail oligopoly that has crushed service across the country. The cycle keeps repeating itself: terrible regulators mess up an industry, it gets wholly deregulated, and the worst actors in the industry consolidate power creating a landscape worse than it started.

There are a lot of destructive licensing regimes out there closing off careers based on silly requirements. People complain about nail salons requiring expensive licenses, but breeze over the fact that it’s a job where lax safety gets workers poisoned. The right answer resides somewhere between protectionist regulation and laissez-faire anarchy.

Formal legal education should junk its 19th century model that’s ballooned into an overexpensive boondoggle. The bar exam is a poor method for testing lawyer competence and should be redundant to an accredited legal education. Alternative legal providers should have an avenue to deliver appropriate legal services to the masses — Washington’s Licensed Legal Technicians program was a good idea to deliver low cost legal services and it’s a tragedy that the state gave up on it. Continuing legal education is treated by many as a farce and should be beefed up given that disciplinary records suggest that harm to the public from doctrinal mistakes is generally more likely to come from experienced attorneys than those fresh from school. But in all of these scenarios, the answer is fixing the regulation of the profession and not walking away from it. State regulators may not be able to prevent all fraud in the status quo, but tales of attorneys taking advantage of the most vulnerable and indeed non-attorneys getting in on the act, highlight the importance of oversight to proactively filter out risky actors before they’ve harmed clients.

Maybe the ABA and state licensing authorities aren’t up to the task and need to be blown up and replaced with new authorities. Perhaps it needs to be blown up to prompt the crisis that invites more responsible regulation down the road? I’ve not had an opportunity to read the whole book yet so I can’t dismiss the thesis out of hand, but based on the op-ed there’s an implied optimism that a wide-open field will invite nothing but honest actors and that’s just a little hard to believe given the troubles we already find in lower-tier law schools. Permanently walking away and trusting the market to shake everything out on the back end has a nasty track record.

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UPDATE: Have exchanged emails with Winston, he explained that the argument of the book is less “eliminating the bar exam for lawyers” as the op-ed headline might suggest and more subjecting everything to a market test. As he and his co-authors see it, the market is capable of determining if someone without a law degree or a law license is in a position to solve the client’s particular legal problem or not. Maybe you do feel comfortable hiring a certificate holder from LawyerShack for a simple will, while you may want a law school graduate for that RICO charge. It still feels like one would want some kind of floor for competency and oversight, but it’s an interesting idea.

Eliminate The Bar Exam For Lawyers [Wall Street Journal]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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