Notice And Comment: The Bar Exam
Should we abolish the bar exam? If so, what should we replace it with?
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It’s the last week of July, and we all know what that means: time to take the bar exam. To anyone taking the test this week, good luck. If anyone has last-minute tips for bar exam candidates, please post them in the comments.
Late July is also the time of year when bar exam and admission horror stories start rolling in, and the legal profession asks itself: should we even have the bar exam? Professors Stephen Carter and Ilya Somin recently wrote essays calling for abolition of the bar exam, for Bloomberg and the Volokh Conspiracy, respectively.
What are the alternatives? Some have argued for deregulating the practice of law by dramatically expanding the universe of providers of legal services, perhaps to include accounting firms, consulting firms, and legal-tech companies. See, e.g., this Wall Street Journal op-ed by Clifford Winston of the Brookings Institution. But such a radical change is probably too heavy a lift, at least in the short term.
In recent years, support has grown for “diploma privilege,” in which graduates of designated law schools can be admitted to the practice of law without sitting for the bar exam. In an article for the Georgetown Journal of Legal Ethics, Professor Milan Markovic looked at the experience of Wisconsin, the one state that currently uses diploma privilege, and concluded as follows:
[T]he bar examination requirement has no effect on attorney misconduct. The complaint rate against Wisconsin attorneys is similar to that of other jurisdictions, and Wisconsin attorneys are charged with misconduct less often than attorneys in most other states. Moreover, the rate of public discipline against Wisconsin attorneys who were admitted via the diploma privilege is the same as that of Wisconsin attorneys admitted via bar examinations.
During the pandemic, as noted by Markovic, four states and the District of Columbia adopted some form of limited or modified diploma privilege. In 2021, these jurisdictions all returned to administering the bar exam. But this recent experience shows that instituting diploma privilege is possible, on relatively short notice, and it establishes the groundwork for more lasting policy change in the future.
So, readers, what do you think? Is it time, as Ilya Somin puts it, to “bar the bar exam”? Should we go even farther and open up the market for legal services to non-lawyers, which might lower costs for clients and ameliorate the “justice gap”? Or should we stick with the devil we know and keep the bar exam, to protect consumers of legal services and to preserve public confidence in the bar?
This is a Notice and Comment post, where I ask my audience to opine on a specified topic in the comments. As usual with Notice and Comment posts, commenting is open to all readers, not just paid subscribers. Thanks in advance for your insights, opinions, and bar-exam advice—and again, good luck to everyone taking the test this week.
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Professor Markovic’s analysis is one of many studies about the bar exam over the years. For anyone who’s interested, Professor Derek Muller has collected and summarized much of this research in a helpful literature review.
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."
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."