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Posting on behalf of a reader who emailed me:

"Put me down as in favor of abolishing the bar exam. This is partly a result of personal circumstances: living in California, with only a D.C. license, means that I cannot help a friend with a legal matter. I was even accused of illegally practicing California law when I helped my church prepare for property litigation. But it is also through the work of Rohan Pavuluri of Upsolve that I have come to recognize how many people NEED lawyers that they cannot afford, because we limit the number of lawyers through a pointless bar exam. I know it is not yet an appellate case, but you might want to read the paper in the current case in NY state about Upsolve’s proposed legal aid program."

https://www.cato.org/blog/upsolve-wins-right-give-basic-legal-advice

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From a reader who supports keeping the bar exam:

"Academicians and commentators probably don’t experience it but there are so many truly bad lawyers out there. I don’t mean bad people. I mean nice people who are profoundly ill-equipped to provide useful services to clients, and thus do more harm than good. I sort of like that the doctor who operates on me has taken some exam to confirm minimum skill. Not sure why we would inflict on vulnerable people more lawyers who can’t pass a simple exam."

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Jul 25, 2022Liked by David Lat

The biggest problem with the bar exam is also its biggest opportunity. Our profession's ugliest lie to our clients is that once someone passes the bar exam, he/she can responsibly practice law in any area in the relevant state. But no law school prepares a prospective lawyer for that kind of role, and only a handful want to be known as that kind of "jack of all trades" courthouse lawyer.

The current bar license gives no help to the prospective client looking for a qualified lawyer on a particular topic. If Monica needs a trust and estates lawyer, she has lawyer advertising, some third-party services (often financially supported by the lawyers themselves), friends/family referrals, and not much else.

Why not create a bar exam that confirms the basics (something like the current multistate) but gives lawyers an opportunity to qualify themselves on the specifics? If you want to be a Georgia certified litigator, you take the multistate, plus Georgia's litigator module. If you want to be a Georgia certified real estate lawyer, you take the multistate, plus Georgia's real estate module. If you want to be a Georgia certified real estate litigator, you take the multistate and both specialty exams. The multistate gets you in the door, but if you want to be part of the litigation section, or be able to call yourself a certified litigator on your website, you have to sit for that section's module.

And you can take these modules at any time -- no high-stakes, 3 times a year business, but rather a year-round, routine way to prove one's skills and potentially expand one's practice. To maintain your module, you have to take targeted CLE to support it.

As an in-house lawyer, you might think this model makes me a second-class citizen. But I would probably already have a speciality coming in, and my company probably isn't paying me to be an expert. Moreover, this model improves my ability to choose qualified counsel in the state where I need outside help. But no longer would an M&A lawyer be forced to learn New York's income tax laws just to be able to practice there. Thoughts?

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Thanks, David, for a public service.

I approach this from the perspective of economics and could not agree more emphatically that the time and expense associated with the bar exam (for the candidates first and foremost of course but also for the entire parasitic industry that has grown up around it) constitutes an unalloyed deadweight loss to the economy and is one blemish among many on the public's perception of the legal profession.

Without going into chapter and verse:

(1) It bears zero correlation with anyone's ability to practice law effectively or even with minimal competence. The subjects addressed in the exam are so far from daily lawyerly practice as to be laughable. (I know, having sat for the NY, NJ, and PA bars.) "The Rule Against Perpetuities?" Srsly?

(2) The "ethical" lipstick applied to it is transparently bogus. By the time folks have graduated from college and law school and are embarking on a career, they are ethical or not in their bones. The conscientious and upright people don't need it and the grifters and corner-cutters won't be reformed by it.

(3) Finally, the enormous encrustation of bar prep companies, tutors, scholars and professors teaching bar exam prep, personal coaches, etc., that has grown up to teach law school graduates what they never learned in law school and will never use again in their lives is an embarrassment. The entire edifice constitutes an enormous exercise in "rent-seeking" and is deplorable.

The pandemic taught us many things we never suspected were true (WFH really works!) and the temporary experiment with suspending the bar (zero harm demonstrated--not a single "failure" anywhere, any time) should be seen as the gift from heaven that it was.

Sincerely, Bruce MacEwen, President, Adam Smith, Esq., LLC (New York)

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Yes, abolish the bar exam and replace it with diploma privilege. Maybe require passing grades in a core set of courses as part of diploma privilege (e.g., torts, contracts, property, professional responsibility, civil procedure, evidence, criminal law, constitutional law), but the bar exam is worthless.

It fails to screen out the incompetent or dishonest would-be lawyers. It's a waste of time and money for the lawyers, a racket for the test prep companies, an ego boost for the petty tyrants who do the bar authority stuff, and nothing more. I wonder how many people continue to support it only because they'd feel like suckers if newer people didn't have to suffer the same hazing ritual they did.

I'd welcome evidence to the contrary. Most bar exam stories I've heard in the last year involve software failures, unpleasant proctors, and policing women's bathroom breaks and tampon use. Take the bar exam, the bar authorities, and the test prep companies, and launch 'em all into the sun!

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Jul 25, 2022Liked by David Lat

A few thoughts:

1. Without some form of gatekeeping, there is no professional disincentive for lawyers to do things in bad faith. It would defang sanctions.

2. Does law school need to be 3 years long? The ABA requires a physical law library for accreditation, which carries with it significant ongoing costs which need to be amortized over large student bodies. Other than clerks cite checking, does anyone use physical volumes anymore? My understanding (Law school admins please correct me if I’m wrong) is that if law schools didn’t have to keep physical libraries, law school could be reduced to 2 years. Have everyone take the MBE after 1L year, with state-specific exams coming after 2L year.

3. This would also upend summer associate hiring, which could be a good or bad thing depending on your perspective.

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Posting on behalf of a reader who emailed me:

“I would say no to opening up legal services to non-lawyers. Non-lawyers would not have the same accountability or support systems when things go wrong as they inevitably would. Instituting diploma privileges for bar admission makes sense for ABA-approved schools. If it works for Wisconsin, then it would at least make sense for other midwestern states.”

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A defense of the bar exam, by two lawyers, father and son, who took the test 34 years apart:

https://marketingstorageragrs.blob.core.windows.net/webfiles/Kalis_Like_father_like_son.pdf

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Jul 25, 2022·edited Jul 25, 2022Liked by David Lat

From what I've seen and read, the bar exam tests much material that is irrelevant to most lawyers' practices, and fails to test much that is relevant; it has no particular value to lawyers, lawyers' clients, the legal profession, or the public at large. It should be abolished.

I'd go farther, and remove the requirement for law school. Currently, four states do not require law school, and two others allow practical experience to substitute for one or two years of law school.

I know the putative argument for the exam, and for a law degree, is to protect the public from incompetent lawyers. I'm reminded of Milton Friedman's argument on professional licenses:

"If you really want to know the real function of licensing all these occupations, all you have to do is go and see who goes down to the state legislature to lobby in favor of licensing. If the real true function of licensing is to protect the consumers, you would expect the consumers to be lobbying for licensure. But you will discover that it is always the plumbers or the beauticians or the morticians of anything you can name. There isn't any occupation you can name which hasn't been down at the state house trying to get licensure.

Of course, you might say that the plumbers know better than anybody else why the customers need protection, but I doubt very much that that's why they are down at the state house. They are down there because they want to be protected against “unfair” competition. You know what unfair competition is. It's anybody who charges less than you do."

The effect of removing these requirements would be to eliminate another barrier to entry to the legal profession. This would put further downward pressure on lawyers' incomes, especially for those not sought by the highly prestigious, high-priced firms. But the law should not be used to protect the incomes of incumbents.

Edit to add: I could support keeping the bar exam, but not making it a requirement to practice. It could serve as a professional certification. There could even be multiple exams: real estate law, criminal litigation, patent law, wills and probate, etc. These might be useful ways to signal relevant competence to potential clients.

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As with most licensing regimes, how we license lawyers in the U.S. does very little to protect the public and does all kinds of things to protect those who already possess licenses. So, yes, we should abolish the bar exam. And we should allow non-lawyers to do all kinds of other things like fill out immigration forms, etc.

What to replace it with? Having nothing would be better than what we have now. If we need some kind of C&F examination before making someone a bit of a state-sanctioned fiduciary, fine, but it should be less subjective than the current system.

But perhaps an even bigger deal than the bar exam, and an old hobby horse of mine, is that if we're going to require a legal education to become a licensed attorney we should only require 2 years of law school *at the most.* Many other countries make it an undergraduate degree. It is outrageous we require 3 years of post-graduate education to practice law. Simply scandalous. Lawyers, ask yourself, how much did you learn in that third year of law school that you needed to protect the public upon graduation? ("Oh man, if I hadn't been forced to take--and then skipped--Corporations during third year I would have committed so much malpractice!") Whatever marginal benefit that added was far overpowered by what you spent in tuition, which leads to higher rates for legal consumers, and one less year when you could be *serving* the public instead of serving the salaries of your professors. A third year makes legal education 50% more expensive, and those dollars are all on the margin, unlike some of the money (for most of us) that you spend on the first year, i.e., third year dollars are mostly debt dollars.

So abolish the bar, sure. But abolishing the third year would do much more for lawyers and for consumers (but not professors' job security, alas).

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Jul 25, 2022Liked by David Lat

I am all for diploma privilege as well. I am also all for changing the third year of law school to a partial or full time internship, be it a clinic at the school or public office.

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Jul 25, 2022Liked by David Lat

One of the many problems with the bar exam is that it doesn't test the knowledge and skills that new lawyers really need. The exam was designed based on "gut instincts" about that knowledge and skills but, as often is the case, gut instincts were wrong. The problem was compounded by well intentioned efforts to create a national exam, which has resulted in candidates memorizing a vast number of federal or "consensus" rules that they will never use in practice.

But now we have good evidence about the knowledge and skills that new lawyers actually use. NCBE's recent practice analysis offers some insights, and the Building a Better Bar study (which I coauthored with Logan Cornett) offers more. NCBE is now building a better exam around those studies, but a written exam can't capture many of the skills that are essential to lawyering--and it's hard to capture the type of knowledge most new lawyers use in a uniform national exam.

States like Oregon, California, Minnesota, and Utah are considering much better alternatives, with Oregon in the lead. It is possible to assess lawyering knowledge and skills through either law school coursework (including clinics and other experiential work) or post-graduate supervised practice. For both of these pathways, bar examiners would make the final decision based on portfolios of work product and assessments from professors or others. And it is feasible to construct both of these pathways with sufficient reliability, fairness, and validity.

The benefits of change? Cheaper pathways to licensure for candidates, better protection of the public, and (most likely, given the stereotype threat that affects high stakes testing) a more diverse profession. What stands in the way? Outdated ideas about how lawyers think and work, legal education's reluctance to embrace more experiential education, our profession's reluctance to innovate, and good old fashioned protectionism (the bar exam may exclude more lawyers than these alternatives would).

It's time to honor our avowed commitments to open the profession to all qualified candidates, protect the public, and increase diversity. The bar exam is not achieving those goals.

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If the Bar Exam is to continue, it should be changed to be open book. In my re-conception of the Bar Exam, the test would include access to Westlaw (or the some other service) for statutes, case law and/or regulations. Any attorney who practiced without consulting case law, statutes and/or regulations before reaching a legal opinion is likely committing malpractice. That is certainly true for newly-minted attorneys. The "secret sauce" is knowing how to do research quickly and efficiently.

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Jul 25, 2022Liked by David Lat

"Nothing" would be my choice, though I think a fine alternative would be to turn it into a true minimum competency exam. Way shorter, really basic stuff that every lawyer is actually expected to know. If the point is to protect consumers from the truly incompetent outliers, failure rate should ~1% or less, not 30%.

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Jul 25, 2022Liked by David Lat

I don’t know that any of these things that people are talking about abolishing matter per se in ensuring the quality of lawyers or legal representation – e.g., including the LSAT, the Bar, or going to law school at all.

All of these things are basically “hoop jumping” exercises. They weed out the people who aren’t willing (or able, but that’s a different topic) to spend countless hours going to school, learning arbitrary information, taking esoteric tests, etc. The evening before I took the California Bar, I felt nauseous to look at the information another time – I had studied to the point where I physically could not study any more.

Are these “bars” to the entry of practice of law good? Is someone’s ability to jump through these sorts of hoops a good proxy for “good lawyers”? It probably is a good filter for determining people who can tolerate billing 2000 hours / year at 6 minute increments. It probably also is a good filter for weeding out people who can’t be disciplined and apply themselves to challenging subject matter.

It certainly doesn’t weed out a lot of people who end up not being particularly good lawyers.

But if you get rid of the Bar, &c., what are you left with? What distinguishes “a lawyer” from “not a lawyer”? Just someone who sat through three years of school? That doesn’t seem any more correct than saying someone who graduates with a creative writing degree is an author. You do have to demonstrate that you have some skill and knowledge that set you apart from a non-lawyer. I think?

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Jul 25, 2022Liked by David Lat

My personal opinion is Bar the Bar exam. It adds nothing to the goal of protecting the public.

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