Paul L. Caron

Sunday, April 19, 2015

The Bar Exam Is Unfair And Undemocratic

NewsweekNewsweek:  The Bar Exam Is Unfair and Undemocratic, by Allen Mendenhall:

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of The New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny—not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

The dean of the University of San Diego School of Law, Stephen C. Ferruolo, complained to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” He is right: The bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition. ...

What’s most disturbing about this system is that it works precisely as it was designed to operate. State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era—Delaware’s bar exam dates back to 1763—but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services.

Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class.

Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

In light of this ugly history, the paternalistic response of Erica Moeser to The New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.”

But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it.

It’s also unclear how memorizing often archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. ...

Today, with services like Amazon, eBay, Uber and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences. Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.

With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves. ... The quickest and easiest step toward reducing legal costs is to eliminate bar exams.

The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction.

But it will require protests from outside the legal community—from the consumers of legal services—to effect any meaningful change.

Legal Education | Permalink


C'mon everyone! Online reviews already work so well for doctors...

Posted by: Matthew Bruckner | Apr 21, 2015 5:36:12 AM

So, is the author of this article under the impression that if one fails the bar exam the first time around, one is not permitted to take it again?

Nope. Take it as many times as you want.

This is industry shilling. Some people keep speaking of an extremely poor first-time bar passage rate as a problem for the examinees, but we all know the first-time pass rate is a problem for the SCHOOLS and no one else.

Tick, tick, tick it's almost July.

Posted by: Huh? | Apr 20, 2015 3:50:03 PM

Dr. Nicl Riviera:

"The kneebone's connected to the... something. The something's connected to the... red thing. The red thing's connected to my wrist watch... Uh oh."

Posted by: terry malloy | Apr 20, 2015 5:39:03 AM

Lonnie: I agree. Let's allow the "markets" to decide. After all, it worked for Sen. Dr. Rand Paul, M.D., Op.D.,, the self-certified opthamologist.

Posted by: Publius Novus | Apr 20, 2015 5:23:17 AM

I bet he just read the fountainhead.

This is a very bad proposal.

Posted by: Jojo | Apr 20, 2015 4:42:52 AM

Medical board exams are undemocratic. Why not just let anyone who wants advertise themselves a a surgeon? Reputation and word of mouth will weed out the bad practitioners.

Posted by: Lonnie | Apr 19, 2015 4:13:10 PM

We should also abolish medical exams, architectural licensing exams, and the CPA exams. If people die, buildings fall down, and investors are misled, at least we won't be oppressing "the lower classes." Sheesh!

Mr. Mendenhall has probably never seen the consequences of really bad lawyering. Let me tell you: it's a nightmare for the client and there is no effective remedy. None. The client loses his or her rights, perhaps several decades of his life, perhaps his or her child, perhaps his or her life's savings. The really bad lawyer is almost always judgment-proof. There is no effective remedy. None.

Posted by: Theodore Seto | Apr 19, 2015 2:15:46 PM

This is the least informed article I have ever read. Traditional news outlets really aren't making a good case for why they should be afforded more respect than bloggers.

Posted by: anon | Apr 19, 2015 12:23:32 PM

"The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market."

A licensing exam does this, not the $150,000 in educational debt necessary to incur in order to be eligible to write said exam?

Posted by: Dr. Rieux | Apr 19, 2015 11:01:06 AM

Along with abolishing the bar exam, we should create legislation that barred any lawyer from holding public office.

Posted by: Jimbino | Apr 19, 2015 6:46:22 AM