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Tuesday, December 11, 2012

Expanding the Baby Bar Idea

I note Dan Rodriguez's discussion below of an option to allow students (if they choose) to sit for the bar exam after two years of law school.  

ImagesThat's a luxury we might consider for students at schools like Northwestern.  

I am more concerned, however, about the possibility that as law schools struggle with restructuring over the next several years, they are going to be admitting more and more students who are less and less likely to have the minimal qualifications needed to pass the bar exam in the first place.   I don't think there's much doubt that where schools admit students with LSAT scores into the low 140s and high 130s, there's a higher likelihood (a) students will struggle to maintain academic standing, and (b) students will fail the bar exam.

I went to law school in California in the 1970s.  Everybody I knew was exempt from what is known as the California "Baby Bar."  That is a bar exam that tests contracts, torts, and criminal law, is administered after the first year of law school, and is a requirement of bar admission for anybody who, among other things, is not attending an ABA-accredited law school (like the one that I recall meeting above a Ralph's grocery store on Wilshire in west L.A.).

There's something to be said for expanding the Baby Bar idea under some kind of neutral and objective criteria even to students at ABA-accredited schools.

I'm not positive the bar exam is the perfect or even a good screen for lawyer competence.  It is, however, one of the cornerstones of state regulation of the competence of lawyers.  I agree with Judge Posner's recent post (HT: Brian Leiter) to the effect that professional competence is an area in which we are likely to see failures or unwanted inefficiencies in market solutions (i.e., I don't want to be the source of the market's information that my surgeon or my lawyer was a hack).  I also agree with Judge Posner that professional societies like the ABA, the AMA, the American Philosophical Association, etc. have their roots, beginning in the late 1800s, in the need for certification of expertise, either by way of state regulation or professional ethics.  As I've written elsewhere,  "the legal profession is simply one example of the specialization of knowledge and judgment. Our physical and social environments have become too complex and interconnected, and our knowledge has so far expanded in breadth and depth that scientific explanation (and hence, reduction to more general laws) is impossible without specialization."  In other words, I don't know if the bar exam is an answer to those concerns, but it's all we've got right now.

Add to that mix the reality that there's an increasingly Darwinian market dynamic not only in big law firms (as Judge Posner observes), but something similar that could very well affect the law school industry (as my co-blogger Jerry Organ has pointed out).  When supply far exceeds demand, as appears to be the case with rapidly declining law school applications, something has to give.  Either it's going to be the law schools themselves, or it's going to be reflected in the caliber of the applicants for bar admission that the schools turn out, at least under the objective standards we now impose (for better or worse).

The schools themselves could (and do) wash out students who have demonstrated, by the end of the first or second semester, that they really don't belong in the profession.  (Are academic "wash out" rates collected and published anywhere?  Maybe they should be!)  But the schools are the same institutions that are admitting them on sketchy qualifications in the first place.  And the "wash out" process depends on grading scales and commitment to rigor that may vary among institutions and individual professors.

It's possible, for all sorts of reasons, that low LSAT scores won't predict first year or bar exam success.  If a school makes the choice, however, to lower the hurdle for incoming students below some standard on which we can reasonably agree, it seems to me fair for states to impose a requirement that its students take a Baby Bar at the end of the first year.  

Posted by Jeff Lipshaw on December 11, 2012 at 08:35 AM | Permalink

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Comments

Jeff Lipshaw is another one who doesn't get the idea that bar exams and other impediments to practicing one's profession can actually LOWER the quality of the practitioners.

Nobody required professional certification, not even college degrees, of the likes of Carnegie, Edison, the Wrights, Gates, Dell, Zuckerberg, Jobs or Wozniak--not even of Einstein. No certification at all is required to be President, Congressman or Supreme Court Justice.

I believe that contributions by many of the aforementioned would go missing in a society that required them to be certified by some type of bar committee. I believe that those who can, do; those who can't, teach or seek certification. The case against professional licensing and certification has pretty well been made by Milton Friedman.

Personally, I refuse to work in any profession that requires certification by any government. If my own government had forced me to be certified to practice nuclear weapons design, I (like Einstein and Fermi) would simply have moved to find a more complaisant government.

American lawyers seek government certification, I suppose, partly because they are generally studiously incompetent in math, science and foreign language, and partly because few countries in the world have much use for the American lawyer.

Posted by: Jimbino | Dec 11, 2012 11:41:08 AM

What should keep law school administrators up at night is not the thought that a graduate with a 80th-percentile LSAT cannot find one to save his life.

In a market where maybe 40% of recent graduates found full-time, JD-required employment that wasn't document review or a least-worst-option sole practice/partnership, talk of insufficient professional barriers is frivolous.

Posted by: Morse Code for J | Dec 11, 2012 3:51:01 PM

[Curse you, plaintext synonymous with html commands, as I try, try again.]

What should keep law school administrators up at night is not the thought that a graduate with a sub-50th-percentile LSAT will find a job for which he is poorly suited, but that a graduate with a 80th-percentile-plus LSAT cannot find one to save his life.

In a market where maybe 40% of recent graduates found full-time, JD-required employment that wasn't document review or a least-worst-option sole practice/partnership, talk of insufficient professional barriers is frivolous.

Posted by: Morse Code for J | Dec 11, 2012 3:54:29 PM

I think this is an interesting suggestion. Other doctoral programs require comp exams to advance to completion, so it's already a cognizable model for the academy. It also would potentially map well onto Deborah Merritt's proposal of awarding an MA at the end of first year, allowing students who don't pass to still attain a (sub-doctoral) degree and a graceful exit: http://insidethelawschoolscam.blogspot.com/2012/10/getting-to-two.html

I also like the new Arizona model of allowing 3Ls to take the bar in February of their third year. Based on a proposal by Jack Chin, I believe.

Posted by: MR | Dec 12, 2012 12:17:33 PM

"I'm not positive the bar exam is the perfect or even a good screen for lawyer competence."

In my experience, the bar exam is taken without use of reference material and it appeared to be designed to put the test-taker under time pressure. As such, the exam does not replicate how one should practice law, so it is hard for me to see the exam as even a "good" screen.

Posted by: anon | Dec 13, 2012 10:48:55 AM

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