On Abolishing the Bar Exam (Dubitante)

Daniel Solove has provided an interesting post, below, on the bar exam.  Let me add my two cents on this issue, because I think it raises various complicated issues, and as regular readers now know, the overlong, equivocating post is my local specialty.  (The "hat tip" -- and Lord, how I tire of blogologisms -- for the title goes to Mark Tushnet's article on the accommodation of religion.)

I readily grant that the bar exam is cumbersome and difficult.  I also grant that, in practice, the bar exam serves as an entry barrier -- especially, because of differing state reciprocity rules, as a barrier on movement between states.  I should note in fairness that it is only one of many barriers to membership in the bar, along with the (generally but not universally applicable) requirements of an LSAT, a four-year degree, and a degree from an ABA-accredited law school.  Having correctly pointed out that the bar exam often serves guild-restrictive practices, I think Daniel is right to question it.

But I'm not convinced it should be abolished.  Consider the relationship between the bar exam and legal education.  The bar exam takes the heat off of law schools with respect to the expectation that they teach everything, and teach it with a practical orientation.  (It does not completely remove the burden, because bar passage affects both ABA accreditation and US News rankings.  But it ameliorates it.)  And, Harry Edwards notwithstanding, that is not entirely a bad thing.  Law schools have moved far more firmly into the broader academic environment of the university, although they still retain a substantial element of pure professional education, and I think removing the bar exam requirement would tend to push schools back into the practical education camp.  That has its merits, but I think it would be a backwards move. 

Daniel proposes a term of pro bono service as a substitute, and I suppose that's why I was moved to write, because I am a member of both a US bar and a Canadian bar (the Law Society of Upper Canada, to be snooty) and have some experience with versions of both approaches.  Canadian provinces generally favor something like the approach Daniel mentions: a prerequisite for membership in the bar is a term of service, known as articles of clerkship, with a law firm or some other legal entity involving work under a supervising lawyer.  It is (generally) paid work and it can involve private, public, or non-profit entities.  Obviously, you can get much hands-on experience, and that's to the good. 

But requiring an articling experience is itself an entry barrier.  Not every student finds a position.  As you might expect, the difficulty of finding a position is often greatest for minority students, older students, and otherwise disadvantaged students.  If the proposal were limited to pro bono positions, the availability problem would be even more acute, and students without financial resources would find the entry barrier -- working for free prior to entry to the bar -- quite meaningful.  (If, by "pro bono," Daniel means not only "free" but "public-service-oriented," I would also question that, for ideological reasons, but perhaps that issue can be set aside for now.)  In addition, not every lawyer wants to accept the responsibility of an articling student; perhaps not every lawyer should, since a proper articling experience (and not all of them are) would involve a meaningful investment of time to design appropriate assignments and supervise.  In short, although there are good and bad reasons to erect barriers to entry, some form of barrier cannot be avoided.   

Moreover, unlike the bar exam, an articling experience may cover only some areas of practice.  That, I suppose, is one reason that most Canadian bars require both articles and some form of examination.  It is not clear from the post, but I take it Daniel isn't looking for anything like a year's pro bono work.  If so, what a student learns in a more limited time may fall far short of the mark in giving them useful training and opportunity for monitoring -- unless the bar designs a rigorous set of requirements for the training period, in which case the availability of willing supervisors will drop considerably.

Don't get me wrong.  I think Daniel's questions are good ones; and I also think I benefited a good deal from my articling year, although my first year of legal practice in the US, with a law license, served similar purposes.  But I would not rush to replace one experience with the other.  There are compelling reasons to think about requiring all law students to do some pro bono work, or an externship, etc.  (Although this will require cutting back on coursework, and throw us back to the question of whether we should eliminate the 3L year.)  But either way, even if for non-invidious reasons, entry barriers will -- and likely should, if they are aimed at quality control rather than maintenance of guild privileges -- remain.  The bar exam does some things well, and can be a reasonable quality control. 

What should we do, apart from contemplating some degree of practical experience before graduation?  Well, we could rationalize this entry barrier better than we have.  The bar is moving toward complete reciprocity, and with the possible exception of Louisiana it should move the rest of the way.  To ensure ongoing monitoring, we could make CLE requirements more meaningful; after all, doctors often have to requalify in their specialties.  The bar exam could ask more practical- and skill-oriented problems -- a trend that is, in fact, occurring.  And to the extent some states set a fixed passage rate, it should be eliminated, since the question ought to be one of the threshold level of competence and not the number of entering professionals.  I welcome other suggestions.