In a thoughtful response to my recent post on the bar exam, prominent criminal lawyer Nathaniel Burney agrees with my view that the current bar exam system is flawed, but argues that the best solution is to adopt a new and better exam:
We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams…. Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer. It doesn’t test judgment, reasoning or understanding. More importantly, it doesn’t test actual skills that lawyers need to know….
Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine. You want to practice criminal law? Someone’s life and liberty is going to be on the line. You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom. Or you say you want to be a transactional lawyer? People’s assets and livelihoods will be at stake. You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.
Burney’s proposed exam system might well be better than the status quo. But I see no reason to believe that bar associations would ever adopt a system whose goal is to protect consumers rather than advance the interests of incumbent lawyers. Even if the bar exam were written by a more objective body, it would still be vulnerable to “capture” by lawyers, and still likely to be inferior to market mechanisms as a means of weeding out bad attorneys.
I. Why Bar Associations Can’t be Trusted to Run Mandatory Bar Exams.
As Burney points out, bar associations are not neutral experts on law. Rather, they are interest groups representing currently licensed lawyers who have a strong incentive to try to reduce competition by making entry into the profession difficult. This helps explain why the bar exam requires applicants to memorize thousands of rules that most lawyers will never use. This approach weeds out people who lack the time, patience, or talent for memorization needed to learn all that arcana. In Burney’s words “[t]he legal profession is a cartel … [W]e have absolute control over entry into our ranks, the rules by which we operate, and even the laws that would apply to us and their enforcement.” Like any other cartel, it’s no surprise that we lawyers use our monopoly power to try to reduce competition and increase our own incomes.
It’s possible that bar association leaders will suddenly decide to prioritize the public interest ahead of their members’ interests. But I wouldn’t bet on it. As Burney puts it, “We need to make sure that the members of our profession are up to the task. Weed out the incompetent. We’re not doing that now. We’ve never really done that.” [emphasis added]. If “we’ve never really done that” in the hundred year history of bar exams, it seems highly unlikely that we are going to start now.
II. The Independent Regulatory Agency Alternative.
One possible alternative to bar exams administered by bar associations are exams developed by independent regulatory agencies. In theory, they could be free of control by lawyers and thus more likely to focus on protecting consumers. But even an independent bar exam agency is likely to be “captured” by lawyers through lobbying. Because of collective action problems and rational political ignorance, the general public is unlikely to effectively monitor the bar exam agency. Lawyers, by contrast, are a well-organized interest group with a strong incentive to flex their lobbying muscle over this issue. Extensive research shows that it is common for independent occupational licensing agencies to be captured by the professions they seek to regulate. Morris Kleiner’s recent book has a good summary of the relevant evidence. Still, an independent bar exam agency would be at least somewhat better than just handing over control to lawyers. It might, for example, be marginally more open to influence by consumer groups.
Even if the independent regulatory agency could be completely insulated from lobbying by lawyers, its tests are still likely to have important shortcomings. One is that lawyer “competence” is not a binary variable in which either you’re competent or you’re not. Rather, there are different degrees of competence. Some low-quality lawyers lack the skill needed to handle complex cases and transactions, but are knowledgeable enough to handle very simple ones. Many such people could well end up failing even a well-designed bar exam. Yet keeping them out of the market would harm consumers by driving up the cost of the simple but important basic legal services they can provide. This is a crucial point, since one of the main flaws of the current system is the very high cost of simple legal services, which is especially damaging to the poor.
Second and related, consumers in many markets are willing to trade off quality for price. Only the individual consumer himself can really know how much he values the one relative to the other. A poor quality lawyer who flunks a well-designed bar exam may still be better than no lawyer at all; and some clients could reasonably prefer to hire him at a low price relative to hiring a better practitioner that costs more. No regulatory agency can really know how a variety of different consumers would make such tradeoffs, especially since there will be great variation in preferences. Inability to take account of varying consumer preferences is a standard flaw of paternalistic policies.
III. Market Competition and Voluntary Certification.
The main fear that many have about abolishing the bar exam is that consumers will have no way of assessing lawyer quality without becoming legal experts themselves. Most clients don’t know much about law, after all.
However, markets have numerous tools for dealing with this problem without resorting to government-mandated licensing. The most obvious is reputation. Clients can’t directly assess a lawyer’s competence. But they can learn about his reputation from other lawyers, previous clients, and others. Law firm brand names are also useful. If I hire Wachtel or Cravath, I may not know much about the individual lawyers who will work on my case. But I do know that the firm has a strong reputation overall, and that they have powerful incentives to hire lawyers who will uphold it. Less sophisticated clients can also piggyback on the knowledge of better-informed ones.
Voluntary certification is another useful tool for consumers. If state-mandated bar exams were abolished, both bar associations and other private groups would still be free to certify lawyers using either tests or other standards they deem appropriate. If lawyers certified by the bar association are generally more competent than others, sophisticated clients will soon realize that, and the knowledge will quickly trickle down to less sophisticated ones. Over time, lawyers certified by the bar association will command higher salaries and enjoy more prestige than those who are not.
Superficially, voluntary certification seems little different from the old bar exam system. After all, lawyers would still have incentives to meet standards established by some professional organization. However, there are three big differences. First, abolishing state-mandated exams allows different certification systems to compete against each other. This stimulates improvement in standards over time and also increases consumer choice. Second, since no certifying body will have a monopoly, these groups will have strong incentives to improve the quality of their certification systems. If the bar association’s certification system turn out to be inferior to that of the Better Business Bureau, for example, fewer consumers will pay attention to it, and fewer lawyers will pay to take the bar association’s test. For this reason, a bar association that didn’t have a legal monopoly on certification is likely to produce a better test than one that does.
Finally, with multiple certification systems, we would no longer have to have a “one size fits all” system that sets standards for all lawyers and all clients. It could well be that Certification A better meets the needs of some clients, while others have reason to prefer B, and still others need no certification system at all.
Market competition and voluntary certification might not be able to eliminate all need for regulation of lawyer quality. For example, there is the issue of what to do in situations where clients have no real choice, as in the case of court-appointed lawyers for indigent criminal defendants. However, it does obviate the need for crude licensing regimes such as the bar exam that completely block access to the profession to anyone who doesn’t pass.
UPDATE: Some commenters doubt that bar exams really keep out a significant number of would-be lawyers. However, the National Council of Bar Examiners reports that 32% of bar exam takers failed in 2009. And that doesn’t count people who chose not to attend law school or take the bar exam in the first place because they knew they lack the talent for memorization needed to pass and therefore don’t want to waste time and money trying.
AJK says:
Do you really think that the bar exams do a good job of serving the interest of lawyers? It’s my understanding that the United States has orders of magnitude more lawyers than other western countries. And of course a significant number of lawyers end up making very little money compared to the investment they’ve made in their education. I certainly see why licensed lawyers would want to restrict access, I’m just not sure that the current regime has actually done so very effectively. Certainly, the competition for the most desirable jobs in the legal market — in government, academia, and the private sector — is already intense. So while I’d agree that the current licensing system does not optimally serve the public interest, I’m not convinced that regulatory capture is a major issue.
July 15, 2010, 12:01 amUrso says:
I noticed you kind of skim over the “market will sort itself out” theory. But isn’t this where it falls apart? This isn’t like buying a brand of peanut butter, where iuf you don’t like it you throw it away and buy a different brand. You usually only get one shot to hire a lawyer.
The information asymmetry in this decision is staggering – sure, Fortune 100 clients will be savvy enough to hire Wachtell or Cravath. What about the guy who’s looking at an aggravated burglary charge, a possible deportation? The best he can hope for is to ask his friends “hey do you know any lawyers?” But what are the odds his friends will be competent judges of the quality of legal services? There needs to be some kind of knowledgeable party, who’s at least nominally neutral, who can set a minimum standard. Now I’ll agree the bar exam/MPRE don’t do a super-great job of that, but I don’t think that’s an argument for abolishing them entirely.
As for the competing certification systems, it runs into the same problems. How will Joe Blow know whether he wants to hire a lawyer certified by the AALAPAA, or one certified by the USLAPCFTLP? It’ll all be so much gobbledygook, and truly incompetent attorneys will be able to buy fancy sounding, if meaningless, accredidation from shady groups who don’t exercise any real quality control.
July 15, 2010, 12:17 amIlya Somin says:
Do you really think that the bar exams do a good job of serving the interest of lawyers? It’s my understanding that the United States has orders of magnitude more lawyers than other western countries.
Most bar exams have at least a 30-40% failure rate, so a lot of people are clearly kept out (though some pass on the 2nd or 3rd try, failures rates are even higher for repeat test-takers). The US does have more lawyers than most other Western nations, but that is because we have a vastly greater demand for lawyers caused by a more complex and more litigious legal system. This higher demand in turn leads more people to try to enter the profession.
July 15, 2010, 12:17 amIlya Somin says:
How will Joe Blow know whether he wants to hire a lawyer certified by the AALAPAA, or one certified by the USLAPCFTLP?
It’s not hard to do an internet search or other brief inquiry to see what are the best-known certification services relied on by the more sophisticated clients.
What about the guy who’s looking at an aggravated burglary charge, a possible deportation? The best he can hope for is to ask his friends “hey do you know any lawyers?” But what are the odds his friends will be competent judges of the quality of legal services? There needs to be some kind of knowledgeable party, who’s at least nominally neutral, who can set a minimum standard.
People charged with burglary are disproportionately likely to know others who have been criminal defendants in the past. Some of these people have useful knowledge of lawyer quality. They can also use voluntary certification agencies, check with consumer organizations, and the like. Basically, much the same ways as Joe Blow buys other complex products such as a car or a house.
July 15, 2010, 12:20 amBill Poser says:
What about following the medical model and requiring law school graduates to serve an apprenticeship, like the internship and residency that physicians serve? This would not only provide an alternative means of evaluation of a prospective lawyer’s knowledge but would provide the kind of practical training the lack of which in law school is a constant criticism. Here in Canada we actually have a system along these lines. A law school graduate becomes an “articling student” under the supervision of an established lawyer. In part he or she serves as a clerk/assistant, but the supervising lawyer assumes certain obligations to further the student’s training. The bar exam is taken at the end of the year of articling.
July 15, 2010, 12:22 amUrso says:
Probably not great examples considering how much federal regulation goes into car design in the US, the strictness of many building codes, and the fact that contractors have to be licensed (although that’s obviously a much less stringent barrier than the bar exam).
Setting that aside, if I buy a lemon car, I can turn it back in get a refund. If I get an incompetent lawyer, I’m going to jail unless I draw a Strickland-friendly panel on appeal.
July 15, 2010, 12:31 amPES says:
I’m sure it is easy to “check with consumer organizations and the like” when you’re being held pending trial. Though, I guess all of your fellow felons who had good lawyers will be out roaming free, so you can just use your phone call. I’m sure they all want to get a call from their known associates in lockup.
July 15, 2010, 12:47 amAH says:
Note that there is a separate bar exam for patent practitioners. This is a federal exam and for the most part it tests very practical, everyday material. Admiralty law is another specialized are a that gets recognized under state law.
The bar exam is indeed used as a tool to keep out new lawyers in some states, especially retirement-area states. In some states the pass rate for new lawyers for the bar exam approaches 90%. In others, it’s much lower. In some states it’s easy to transfer in from another state; in others, it’s essentially impossible without taking the bar exam.
I agree with the notion of certification/specialization. By analogy to medicine, some areas are very diffucult. if I need heart surgery, I don’t go to an opthamologist. Specialization and certification work in those fields. In the legal context, some areas of law are very difficult. Some lawyers choose to limit their practice, and are de facto specialists. would seem that recognition of this, and certification, would work here as well.
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July 15, 2010, 1:22 amPES says:
In seriousness, are there no net benefits to having fewer attorneys? It seems like a somewhat higher price for legal services serves to keep the court system at least minimally functional. High costs would seem to deter some spurious claims, and who really knows the proportion between arguable and ridiculous claims among deterred litigation? The courts are clogged now, so what happens when litigation becomes less costly by an order of magnitude? This is not like buying a car or a house, where (at least for now) we clearly have room for everyone. Of course, this has very little bearing on the question of transactional attorneys.
For another, it seems that limiting the field to those who have some form of indoctrination into the law would keep the legal lexicon somewhat more coherent than if the doors are thrown open. If, as many claim, the first year of law school is akin to learning a new language, then what happens when there is no mandatory instruction in that language for those who practice the law? Legalese does not have a great reputation, and that is probably well deserved, but it does allow some semblance of precision and uniformity for those who speak it. How does the law itself remain coherent if the language of the law loses its coherence?
July 15, 2010, 1:24 amThe Curmudgeonly Ex-Clerk says:
Acknowledging that we are all essentially relying on subjective impressions rather than hard data, I think AJK’s sense of things likely is more accurate. As he notes, there are facts that do not seem consistent with Professor Somin’s guild protection thesis. Assuming the 30 – 40% failure rate figure is accurate, it does not compel Professor Somin’s conclusion. Given the self-interested admission and graduation policies of non-top tier law schools, I don’t think it’s implausible that 30 – 40% of law school graduates simply have no business practicing law. (The current underemployment of lawyers perhaps suggests that the market will not support the number of lawyers who do pass the bar at any rate; though this might be a temporary circumstance.) Of course, my impression is colored by the fact that I do not share the dim view of state bar exams held by so many others.
I have a healthy respect for Professor Somin’s intellectual capabilities, but some of his musings on this subject strike me as farfetched. For example, he writes:
Again, this is just my impression (albeit an impression formed while having worked for two years for a federal district court with a heavy criminal docket), but the idea that criminal defendants would be well served by relying on other criminals for advice on good counsel seems dubious to me. Criminals, by and large, are not the most sophisticated lot. (This definitely holds true for the average burglary suspect.) If the familiarity with the criminal justice system garnered by offenders — even repeat offenders — translated into saavy about legal counsel on average, I failed to notice it.
July 15, 2010, 2:15 amPeter Gerdes says:
Seems to me that bar exams are actually quite well designed for the purpose they serve. I mean what can we reasonably hope to achieve/promote via a licensing criteria for lawyers:
1) Promote a minimum standard of competance and reliability so people in crisis situations can hire a lawyer with reasonable confidence that they won’t be horribly screwed over by someone without a clue about what they are doing, e.g., not meeting important procedural deadlines, waiving rights, filing suit without knowing/advising you about anti-SLAPP provisions etc.
2)Help create a standard of professionalism so the courts don’t get slowed down by incompetant lawyers who don’t understand the procedures or terminology, i.e., preserve the efficency gains provided by lawyers over pro se (sp?) defendants.
3)Encourage compliance with the ethical standards expected of lawyers as agents of the court.
Where the critics of the bar exam get it wrong is in assuming the bar exam ensures the competence or any other quality above by accurately measure the exam taker’s ability. Rather, the bar exam works simply by presenting a substantial challenge to would be lawyers that requires significant investments of time and study to surmount.
If there was no bar exam there would be no reason for the guy offering bail bonds not to offer to represent you as well. After all he might make some money and absent intentional misbehavior or repeated offenses the worst that’s likely to happen is getting barred from practicing law.
The bar exam ensures that everyone who practices law invested substantial resources in gaining this certification. This gives the various ethical rules and standards substantial bite since losing the ability to practice law is a huge penalty to people who put in the work to pass the bar.
Now by passing the bar you’ve demonstrated a certain degree of organization and competence (studying and sufficent preparation in law school). More importantly, however, is the fact that putting in this investment isn’t worth it if you are going to half-ass lawyering. If you just think ‘hey it would be cool to be an attorney’ after seeing a law and order marathon the bar exam makes sure you don’t just ‘give it a whirl’ but are really committed to a career needing/benefiting from a law license. In other words the bar exam meets conditions 1 and 2 by discouraging casual lawyering.
Trying to actually test for ability would be a mistake because that’s just too hard to do and encourages all sorts of unfortunate manipulation. Moreover, the many kinds of legal specialization (and evolution of new specialties) mean it would be sub-optimal to bar people from the practice of law merely because they don’t meet the traditional criteria for a good lawyer. The current system is good exactly because anyone with moderate intelligence who is willing to be studious and put in the effort can eventually pass.
July 15, 2010, 2:20 amBecky Chandler says:
I am shocked that there are sincere people who are so naive they believe the bar exam actually improves the quality of practicing attorneys. The 32% fail rate proves nothing. Although it is totally anecdotal, it is my observation that eventually everyone, who is truly interested in practicing law, passes a bar exam somewhere. When people have gone through three years of law school–unless a great opportunity arises, or they never intended to actually practice law, they are going to eventually get admitted to a bar somewhere.
And of the course the obvious fallacy is the assumption that the bar exam is somehow able to determine who will be a competent attorney. However,I suppose it does so in the same primitive way that the DMV test predicts whether a 16 year old will be a lifetime competent and safe driver.
July 15, 2010, 2:27 amAJK says:
I agree that the supply of lawyers would likely be greater if bar exams were eliminated altogether. My point is that even with some pretty high barriers to entry, the supply of lawyers is well above the level that self-interested lawyers would probably want to see, thereby making it seem less likely the regulatory capture has been a major problem.
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July 15, 2010, 4:45 amDavid M. Nieporent says:
While I agree that mandatory certification through the current process serves the interest of guild protectionism rather than consumer protection, I think the focus (from both posters and commenters) in this series of posts on people who can’t graduate from law school or can’t pass the bar exam is off target. The pool of such people who would be useful lawyers is probably too small to matter.
The real issue is people who don’t jump through those hoops because they don’t want to be lawyers, but whose professional services touch upon the law. For example, real estate agents. State bar associations routinely lobby to push back against any attempt by real estate agents to say or do anything which could be deemed Unauthorized Practice of Law (UPL), thus limiting the advice real estate agents can provide to customers. A criminal defense lawyer whose only experience with real estate is that he lives in it can give all sorts of advice to a home buyer that a 30-year real estate agent cannot. That’s where the public gets screwed.
Another example: the Texas bar notoriously went after Nolo Press in the 1990s for the provision of legal self-help books and software on the grounds that this constituted UPL.
(As a lawyer who is active in networking, I believe from my experience that virtually all complaints about UPL come from lawyers protecting their turf, not clients upset about the service they received.)
And let’s not even talk about the fact that licensing is done state-by-state. At least when I took the NJ bar, there were no NJ-law specific questions on it; you could pass it, and become a NJ lawyer, simply by taking generic law school classes. And NJ has no reciprocity. Thus, an elite veteran lawyer from NY cannot, in general, provide legal services in NJ, and to do so would have to take the NJ bar and get admitted in NJ, which could easily be a six-month process serving no purpose at all. In other words, the NJ bar is keeping out a significant number of would-be lawyers, not because they can’t pass the exam — they’ve already proven that they can — but because they don’t want to take the time to do so again.
July 15, 2010, 5:21 ampublic_defender says:
At the expensive side of the practice, bar exams have zero effect on cost. The top law firms turn away tons of applicants, so the few potential applicants who fail the bar are so few as not to count.
At the other end of the practice, bar exams also have little effect on cost. There are a lot of lawyers just barely breaking even or making 30K to 40K a year. When their income drops any further, they leave the practice of law, so adding more lawyers won’t decrease costs. It might increase supply enough that better people stayed in the practice, but it’s not clear that it would improve the average skill level of those who remain.
Maybe the bar exam does increase costs in the middle, but I’d suggest that one real additional cost is the threat of discipline, which requires a minimum level of service, and therefore a minimum cost. You can’t just churn out wills and trusts without at least some level of thought and attention, so maybe that increase in cost is good, just like it’s good when the threat of malpractice encourages doctors not to be careless. Another factor increasing cost is the complexity of the law. Go ahead, try to settle a medical malpractice case with 20 hours of work. Eliminating the bar exam won’t change that.
In criminal cases, government is heavily involved with pricing, which can drive prices down so far that you can make more money snaking a single drain than handling a single felony case. (Plumbers make more per hour than most court-appointed lawyers in my state, often two or three times the hourly rate, and plumbers generally don’t have a fee cap imposed.) That leads some lawyers to cut corners (no client visit, no investigation, no individualized motions, no trials, etc.).
I am starting to see some disciplinary push back. Lawyers who don’t provide competent representation can face the threat of discipline. One problem there is that disciplinary authorities often don’t understand criminal law. An ex-client once filed a complaint against me, and it was dismissed without a response from me based on the disciplinary authority’s objectively stupid misunderstanding of criminal law. I thought it would be unwise to write back to say, “You dismissed this complaint for the wrong reason.”
When Randy Balko or others rightfully complain that an innocent man got rammed through the system, you can bet that his lawyer was likely just part of a plea-mill who couldn’t or wouldn’t take the time to try a case properly. The problem is that it takes time and money to try a case properly, even at very low hourly rates. And if those rates go too low, the lawyers with the ability to try those cases find other lines of work. And then how do we provide the lawyers that the Constitution requires?
As to the idea to have multiple private certifications, that may not work as intended. Instead of one certification, we would have many. If I want to change my line of work, I need another certification. In practice, that could create even more barriers to entry.
Back to the original point. I see reason why a top law professor would automatically be qualified to practice law. Teaching and practicing law are two very different skills. Most lawyers would make mediocre (at best) law professors. And I wouldn’t want to let most law professors anywhere near a courtroom.
July 15, 2010, 6:15 amBama 1L says:
People who have no ability to memorize are not going to do well in college or law school, either. All else being equal, a good memory will help in any field of academic pursuit.
That said, you are also failing to explain the strong correlation between LSAT score, law school gpa, and bar passage. The LSAT is an aptitude test and doesn’t require you to possess any particular knowledge, so it can’t be testing the sorts of memorized facts that bar exams do. Bar passage correlates to grades but not to particular classes taken, so it does not seem to matter in general whether a student learned, say, family law by spending two semesters on it with a casebook and professor or two hours on it in a commercial bar prep class.
I am not really sure that I believe there is a significant population that is generally intelligent but is cursed with a very poor memory for facts and concepts. Memory can be trained, and people who read and think a lot are training their memories. My advisor in grad school (history) used to say that of course he didn’t want us to memorize huge sets of data, but it would be surprising if we didn’t end up knowing a great number of facts just from reading so much, and it would be a great handicap to have to look things up in the middle of a seminar or workshop. I would say that people who don’t have a great number of useful facts at their fingertips are not going to come off as intelligent in conversation and will take a great deal longer to accomplish intellectual tasks.
July 15, 2010, 7:42 amPersonFromPorlock says:
Mayn’t the real problem be ‘too many laws’, not ‘too few lawyers’?
July 15, 2010, 7:57 ampublic_defender says:
One more point: I doubt that the bar exam is a real barrier to entry. Even if a third fail any one test, many of those were repeaters. Based on the report you cite, the passage rate was 79% for first-time takers, and 33% for repeaters. Which, by my math, means that roughly 86% passed after two tests. If you add in three- or four-time takers, the exam probably keeps our only the most unqualified (even if it doesn’t really measure the ability to practice law, it does measure some basic competence). That may mean that the exam isn’t really screening out enough of the people we really would want screened out, but I don’t think it’s fair to say that the exam keeps a third of takers from becoming lawyers.
The real barrier for entry is the time and money it takes to complete three years of law school. Even eliminating the bar exam won’t change that. If we want to get rid of a real barrier to entry, we need to eliminate the rule requiring lawyers to graduate from law school.
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July 15, 2010, 8:10 amPeteP says:
Step back and look at the bigger picture – what does it tell us about our legal system if, after 3 – 4 years of high-priced legal education, and thousands of dollars of cram courses, a person of high intelligence ( so we assume if they’re in law school ) still can’t pass a test about the law ?
How is the average citizen supposed to understand it ?
Over decades and decades, the lawyers have so over-complicated everything ( to their own advantage as a priviledged class of high priests ) that it’s become an arcane ‘black box’, a big ‘Secret Sauce’ that only they can comprehend, such that we have to pay them hundreds of dollars an hour to tell us what’s legal and what isn’t.
This is not right. This is a perversion of what ‘law’ is supposed to be. and ‘Justice’ does not derive easily from it.
July 15, 2010, 8:39 amSally says:
It seems as if some people want the Bar exam to do what law schools should be doing, which is weeding out the people who lack the skills, knowledge or ability to become a competent lawyer. Unfortunately, to the extent most law schools worry about weeding anybody out at all it’s to get rid of the people who can’t pass the Bar exam on the first try.
All this discussion misses the point. Most lawyers learn how to do the job by actually doing it. Everything before that or aside from that is theory. And some of the people who would be able to ace any test devised by man will still fail when put in a position to do the job effectively. This usually calls for a response that we must have more clinical skills testing except that being able to perform in a classroom or in any kind of controlled environment isn’t the same as being out in the messy unpredictable world where what you do truly matters.
The discussion also discounts or ignores the role played by employers and by that I don’t mean the client. Most new attorneys don’t go into business for themselves fresh out of law school. They work for law firms or legal departments inside corporations or the government. It might help if these employers were more interested in training the new lawyer effectively instead of just seeing him as a billing machine or someone who’s supposed to meet a quota of assigned work whether he’s capable of doing it or not.
July 15, 2010, 8:55 amRyan Davidson says:
I fail to see the problem here. There are already too many lawyers chasing too few dollars available for legal fees. The bar exam may be arbitrary and stupid, but unless we want to go back to an entirely discretionary system for admission to the bar based on patronage and personal reputation, anything which serves to discourage people from being lawyers is No Bad Thing.
The problem with a lack of legal services on the low end is not that there are too few lawyers, but that the low end doesn’t pay enough regardless of how many lawyers you throw at it. $30-40k, which is basically all you can get doing nickel and dime criminal defense, family law, and landlord/tenant disputes, won’t support a lawyer anymore. Maybe it would have twenty years ago, but today, the fixed costs of running a viable practice alone are almost that. When you throw in the student loans which have become essentially mandatory, a lawyer who sees less than $50k a year can’t even cover his expenses, much less collect minimum wage. Tons of people need a lawyer, but the vast majority of them can’t pay for one.
Witness the fact that there are tens of thousands of unemployed attorneys but no rush to enter solo, small-town practice, the demand for which has never been higher. It isn’t just a matter of pride, it’s a matter of economics. Working yourself to the bone at a job that will not enable you to make ends meet is a worse choice than unemployment, which at least lets you defer your indebtedness. True, you aren’t servicing your debt, but you aren’t in default either.
I don’t want to lower the barrier to entry for practicing law. I want to raise it. A lot. The costs are what they are, and unless we find some way of discouraging people from going to law school in ways other than the sheer economics of the thing, as that doesn’t seem to be working, I can’t see this thing turning around.
July 15, 2010, 9:33 amneurodoc says:
All very well and good to compare to how physicians establish that they are qualified to practice medicine, but the route graduating medical students and law students go after finishing school differs in various ways. Board certification is not a requirement to practice medicine, only licensure by a state is necessary, and many physicians practice as generalists, or even as specialists without being board certified. One is not eligible for board certification until they have completed an approved residency, which takes from three to five years beyond medical school and then for some a fellowship that may take another year or two, so sometimes seven years in all. And it may be that one has to be out in practice awhile and do a certain number of cases before they can qualify for board certification in their specialty, e.g., plastic surgery.
For physicians board certification exams in a particular specialty that they have trained in for years are very different from the bar exams lawyers take as part of their licensure process. (The general licensing exams physicians take are roughly analagous to bar exams.) Are lawyers going to be issued licenses restricting their practice to only those areas in which they have demonstrated special expertise?
July 15, 2010, 9:34 amVALawyer says:
The arguments here seem to be trying to have it both ways: (A) the bar exam is too hard and prevents people from practicing law who ought to be able to, and this is partly because lawyers/bar associations have incentives to limit competition; (B) the bar exam doesn’t do a good job screening out incompetent attorneys, which implies that the exams are, in some sense, too easy, which would suggest that current attorneys would have an incentive to make the licensing process harder.
There has been a lot of discussion about the vast amount of memorization required to pass the bar exam. It is certainly true that, when studying for the bar exam, I spent 10-12 hours/day, 6 days/week memorizing lots of rules. And few attorneys actually practice all the subject areas that are testable on the bar exam. But my experience is that practicing attorneys DO need to have lots of laws and rules memorized. The issue with the memorization required for the bar exam seems to me to be with its scope, not its quantity. That is, the bar exam requires would be lawyers to memorize a little about a broad swath of subjects, but practicing lawyers need to memorize a lot about a narrow swath of subjects. I wonder whether the “memorization hurdle” is really the issue. Can one be a good attorney if you are incapable of memorizing the quantity of material necessary to pass the bar exam? (Part of the memorization challenge is the compressed time period most bar takers have to do the memorizing. Most law schools don’t teach the law that is tested on the bar, so law school graduates only have 2-3 months to do the memorizing.)
Finally, the issue is not mandatory licensing OR market forces. Currently we have mandatory licensing PLUS market forces. Doesn’t even a flawed licensing system to test minimum competency add value to the consumer who is relying on the market to select a good attorney?
July 15, 2010, 9:57 amPB says:
A note about the real world here. In the great majority of states, bar associations have nothing to do with the bar exam. The examiners are typically appointed by the state supreme court. Lawyers too, of course, but the political and economic interests are not the same at all. There are frequently serious disputes between bar examiners and bar associations over licensing issues.
July 15, 2010, 10:24 amklp85 says:
“The arguments here seem to be trying to have it both ways.”
(1) Not everyone is making both arguments.
(2) It’s possible for both to be true, if the underlying criticism of the test is that it’s a poor proxy for the qualities required to be a lawyer. In that case, it excludes people who do poorly on the exam but would make great lawyers while allowing people who would make bad lawyers but have the skill set necessary to pass the bar exam. Hence the suggestions for practice-area specific exams, apprenticeships, etc.
In his dissent (or concurrence-dissent?) to Grutter (or was it Gratez?), J. Thomas writes that if schools want to diversify, and they really believe that test scores and GPAs don’t tell the whole story, instead of using Affirmative Action they should either have more open admissions or develop a more race-neutral admission system. It seems as if something similar to the latter suggestion is at work here for those who have both complaints simultaneously: if there is an interest in maximizing the number of lawyers who are qualified, other mechanisms (whether market or government or both) that better measure legal competence should be used.
July 15, 2010, 10:26 amMike says:
And yet.. the lawyer working on my last house closing still charged $500 for spending maybe an hour total with me on the phone, writing one official sounding letter, and a half an hour of reading paperwork carefully. I think it was four hours of total work including his driving time. The value was entirely for his body of knowledge, not necessarily for his time.
I think the real problem was brought up here – that 30k-40k is nowhere close enough to be worth it. That’s a solid salary for most people out of college, especially those in a service type industry. The problem is that to become a lawyer, you need to spend tens of thousands on loans for your law school on top of your base college. Does most legal advice needed by normal people need that much attention? Most people need to handle basic contracts, or get out of a parking ticket, or even just figure out what they need to do to follow the law and not automatically lose in a minor civil lawsuit. Those sorts of things don’t need a graduate degree, but we’ve set up the system so the only people who can give that advice are pretty much required to have one, and need to be compensated accordingly.
Just as a nurse practitioner should have no problem diagnosing strep throat, a para-legal or something similar should be able to say “there’s nothing untoward in this home purchase contract.” You wouldn’t go that same person to defend a murder charge, but you might for a parking ticket. The problem is that any legal advice is going to be expensive, not that some advice is.
July 15, 2010, 10:48 amCurt Fischer says:
This analysis, if true, raises the question of why do lawyers whose income falls below 30K to 40K a year leave the practice of law? One possible answer is that law school is very expensive, and 30K to 40K a year in income does enable repayment of school debts. If that’s the case, then what if law school were made cheaper or if law school was not a mandatory prerequisite to becoming a lawyer? Would these changes increase the number of lawyers willing to practice law at incomes of 30K to 40K a year? If so, would the increase result in lower-priced basic legal services for the poor?
July 15, 2010, 11:04 amUrso says:
I agree that this is pure protectionism. I’m in favor of a nationwide reciprocity system after a certain # of years of practice in good standing. New York law and Jew Jersey law are different, but they’re not so different that a New Jersey attorney wouldn’t be competent to practice law in NY.
July 15, 2010, 11:09 amDuderino says:
“As Burney points out, bar associations are not neutral experts on law. Rather, they are interest groups representing currently licensed lawyers who have a strong incentive to try to reduce competition by making entry into the profession difficult.”
If that were the case, wouldn’t the ABA be less likely to “approve” so many law schools to operate in the first place? It seems if you wanted to keep the number of lawyers down, a better way would be to have less than the 250ish ABA certified schools (to say nothing of those that are certified by individual states)?
Does anyone know if there is a financial incentive to the ABA licensing new law schools (i.e. – application/processing/membership fees)?
July 15, 2010, 11:48 amalkali says:
I don’t think it does explain it:
1) In many states, the process of applying for the bar is supervised by the courts, or by a court-supervised intermediary, and not by the state lawyers’ association. For example, in New York, the State Board of Law Examiners is comprised of attorneys appointed by the state’s Court of Appeals (its highest court). The same is true of Texas and Massachusetts.
2) That notwithstanding, the current president of the New York state bar association is a litigation partner at Patterson Belknap. Do you think he is worried that someone sitting for this year’s New York bar exam might undercut him on fees? I sincerely doubt the issue has ever crossed his mind.
3) Some small states that border larger states do have barriers to entry, but they don’t appear to use the bar exam for that purpose. For example, New Hampshire requires new lawyers to attend a skills course which they must physically attend in New Hampshire, and I suspect that keeps a lot of Massachusetts attorneys from also applying for the New Hampshire bar. But the bar exam is pretty much like the Mass. exam, and relies largely on the Multistate Bar Exam multiple choice test.
July 15, 2010, 12:32 pmJay says:
Your second point is strengthened by the fact that most bar exams are already run by independent agencies, usually as part of the state judiciary. It’s not the case that “bar associations” (whether you mean the ABA and its affiliates, or even mandatory state bars) administer the bar exam. But, as you suggest, these independent agencies are typically already captured by the existing bar, and, especially in smaller states, serve a mostly protectionist role.
July 15, 2010, 12:55 pmUrso says:
Wasn’t New Hampshire the state that prevented a woman from sitting from the bar because she lived in Vermont (albeit only a few yards from the New Hampshire border?) It’s hard to see rules like that as anything but protectionism.
July 15, 2010, 12:59 pmBama 1L says:
Because it’s not worth the hassle. Anybody who can practice law or even just get into law school can surely get a less stressful and time-consuming job that pays $30,000-$40,000: schoolteacher, office drone, manager of chain restaurant, etc.
July 15, 2010, 1:33 pmalkali says:
I’m not familiar with that story, but I do know that a fair number of attorneys in Boston are admitted in New Hampshire (which involved their driving up to Concord once a week in the evening for a number of weeks to take the skills course that I referred to). So it can’t be the case that non-N.H. residents are entirely prevented from sitting for the N.H. bar.
July 15, 2010, 1:47 pmPickled Tink says:
Contractors have to be licensed? Not in Texas.
July 15, 2010, 1:51 pmUrso says:
They are in California. 43 different kinds of licensing classifications; and I a Civil Code provision, or maybe in the Business & Professions Code, that allows you to stiff any unlicensed contractor who does work on your house. Unlicensed contractors simply have no right to sue for unpaid work.
http://www.cslb.ca.gov/
In any event, Texas still has building codes, and the homes are designed by licensed architects. The point is, Joe Blow’s house is highly regulated from the ground up.
July 15, 2010, 2:18 pmADF Alliance Alert » Why Better Bar Exams are Not the Answer says:
[...] Somin writes at the Volokh Conspiracy: “But I see no reason to believe that bar associations would ever adopt a system whose goal [...]
July 15, 2010, 2:26 pmThe Curmudgeonly Ex-Clerk says:
Pickled Tink:
It depends on what sort of “contractor” you have in mind. The website of the Texas Department of Licensing and Regulation indicates that there are licensing programs for Air Conditioning and Refrigeration, Architectural Barriers, Boiler Safety, Electricians, Elevator / Escalator Safety, and Industrialized Housing and Buildings. Also, localities may impose various licensing requirements of their own regarding “contractors.” For example, the Austin City Code provisions relating to building and demolition mandate that any “activity for which a plumbing, electrical, solar, or mechanical permit is required” or any “activity for which a sidewalk, curb, gutter, or driveway approach permit is required” are to be performed by a “licensed contractor” unless a state code or technical code exempts the activity.
July 15, 2010, 2:34 pmPickled Tink says:
I guess Ilya would be interested in knowing which state is better off. Because if Texas is better off (whatever that means) then it would be evidence that less regulation is better
Well, in the original context, Joe Blow buys a house. Housing contractors do not need to be licensed in Texas.
July 15, 2010, 4:24 pmohwilleke says:
The flip side of the argument is that a lot of would be lawyers would don’t pass the bar exam really are a menace to the general public.
From the general public’s perspective, false positives (i.e. competent would be lawyers who flunk the bar exam) are a much more minor concern than false negatives (i.e. incompetent would be lawyers who pass the bar exam).
The bar exam also protects the public from grade inflation in law schools, as professors are more prone to capture by law professors than bar exam graders.
Part of what the bar exam (which includes not only a academic portion but a character and fitness component that requires would be lawyers to compile and present vast amount of information about themselves to the bar admission officials) tests is the ability to spend a prolonged amount of time and organization preparing for a fairly brief moment of testing by a bureaucracy.
The bar exam would select much the same people if the content tested on the exam concerned Confucian philosophy instead of Anglo-American majority rules of law. Part of the point is that it selects for ability to prepare and general intellectual ability.
Prospective lawyers whose only failing is an inability to be thorough in preparing can master themselves, take the exam again, and be admitted, and many do.
But, there is empirical evidence to suggest that the ability to ever pass the bar exam, as intended, is weeding out those with weak academic abilities or irremediable inability to prepare. For example, a law school’s bar exam ever pass rate is quite tightly correlated with the LSAT scores and undergrad GPA of their student bodies. Bar exam pass rates are much lower in California, where one does not have to graduate from an accredited law school to take the bar exam, than elsewhere, where one must.
Similarly, isolated examples of Yale Law School students flunking the bar exam notwithstanding, the most selective law schools, on average, have the highest bar exam pass rates, even though they are among the students least likely to take the bar exam in the state where they attended law school (and hence to be unlikely to have received state specific bar exam preparation in law school).
The validity of the bar exam as something that differentiates between good and bad prospective lawyers is also suggested by the fact that the more times one takes the bar exam, the more likely you are to flunk it. Inability to pass the bar exam on the first try isn’t a perfect measure of one’s ability, but inability to pass the bar exam ever singles out a pretty definitively worrisome group of prospective lawyers. Maybe some promising lawyers get discouraged and don’t take the exam, but a lot of those who consistently flunk aren’t so promising.
In contrast, there is no meaningful difference in pass rates between states that have a bar association managed and administered bar exam, and those where this function is handled by an independent agency, typically under the supervision of the judiciary, which tends to disfavor the narrative of bar associations of being more guild-like than any other form of regulation.
Similarly, when people who are not lawyers pretend to be lawyers and practice without licenses, the incidence of serious malpractice is appreciable. Indeed, one of the strongest reason for having some sort of licensing for lawyers, with or without a bar exam, is to preserve the right to take away that license.
It also provides some basis (perhaps overrated) for society to have confidence that in criminal proceedings, that defendants have not been ramrodded into being involuntarily assigned a lawyer who is an utter idiot (a conclusion empirically supported by the evidence that statistically, public defenders obtain results not significantly different from those of paid criminal defense lawyers chosen by clients).
Rather than eliminating the bar exam entirely, it might be more fruitful to impose weaker barriers to entry through regulated paralegal professions with much narrower practices. This is already done to a great extent with regulated collection agencies, realtors, title agencies, admitted agents (who prepare tax returns), bankruptcy petition scrivener’s, securities brokers, law enforcement officers, government bureaucrats, etc.
Even with our large number of people called lawyers per capita, lots of stuff that could be called the “practice of law” is done by non-lawyers under different regulatory regimes. Piecemeal continuation of this trend in specific well reasoned, regulated, situations wouldn’t be bad.
Before throwing out the bar exam, it would be nice, at least, to see a study of people who flunk the bar exam and to try to pinpoint why good people sometime flunk it, and how many people who flunk it shouldn’t be lawyers. I’d want to see evidence from the testing and passes and fails themselves, rather than political theory arguments that the bar exam can’t be saved before throwing it out.
July 15, 2010, 6:25 pmTejas says:
In Texas, the bar exam and the licensing process for new attorneys are handled by an agency of the Texas Supreme Court called the Texas Board of Law Examiners. This agency does not appear to function or exist simply to winnow out competition for existing licensed attorneys, but who knows. In any event, is it really necessary to intellectualize bar examinations (or turn the topic of bar exams into an academic exercise on economics) to the degree done so this week on VC and other blogs? I ask this not because I do not think the bar exam is archaic or that the process for training and licensing attorneys should not be improved. But much of the focus here seems to be on the fact that bar examinations are pointless because they require unprecedented memorization, and not everyone is talented at memorization. Ok, let’s keep it simple: if you do not pass, then take the test again until you pass. If you cannot pass after multiple tries, then perhaps you have a dedication issue (not a memorization issue) that needs to be examined, or at least you need to figure out new studying methods. Another issue at play here seems to be that bar exams are an inadequate measure of a future attorney’s potential or competency. That may be the case to some extent. However, it seems unfair to expect the bar exam to do too many things or to blame bar examinations for everything. Anecdotally, it seems that the LSAT, law school admission practices, and the hiring practices within the legal profession all serve to exclude or underestimate many folks who would or will make excellent attorneys. I find these far more pressing issues for reform, as well as continued consideration of true hands-on training during law school. The issue of whether bar exams should be abolished because they are archaic, unfair, hard, a silly rite of passage, or inadequate seems pedantic. It is just a test for pete’s sake, albeit a hard one.
July 15, 2010, 6:45 pmohwilleke says:
I seriously doubt that the U.S. legal system is more complex. European societies are vastly more regulated by law than ours in many respects.
I also seriously doubt that a more litigious legal system is at fault. I’ve looked closely at the number of lawyers in Colorado who are actually involved in litigation in the United States, and it is surprising small. It is fair to estimate that fewer than 15% of lawyers have any form of litigation practice. Roughly 80% of criminal jury trials and 30% of criminal bench trials are handled by about 6% of lawyers. About two-thirds of civil trials where lawyers are involved (mostly collection and eviction cases) are handled by 1-2% of lawyers. The remain lawsuits are disproportionately personal injury cases also handled by a very small subset of the bar.
The number of people in the legal profession in the U.S. v. elsewhere has far more to do with the way that the profession is structured. In most countries, the bar is overwhelmingly comprised of trial lawyers. Most countries also have far more judges per capita than the United States.
But, in many countries legally trained notaries do a large share of the transactional and probate work done by American lawyers, and the normal career path for someone who would be a corporate lawyer in the United States is to earn an undergraduate degree in law and then to be employed in a department of a corporation that handles legal work.
Thus, the career path abroad of a lot of people who would be lawyers in the United States, looks a lot like the career path of people who want to be bankers in the United States (who graduate with undergraduate business degrees and then go to work for a business as a banker or CFO in a very specialized and legalistic environment).
Also, a lot of people who would be lawyers in the United States are civil servants in other countries. For example, in France, if you have a problem with the way a government agency in regulating your business, you send a complaint on a standard form you can buy at a stationary shop to the Council of State. The Council of State then assigns at least three people who went to their equivalent of MIT for bureaucrats to your case – one to look after your interests, one to advocate for the government, and one to judge the case. None of those people count as lawyers, even though all of them would probably be lawyers in a parallel situation in the United States and they have similar specialized training in public law and procedure.
Classification is probably a bigger factor in the count of U.S. lawyers than anything inherent about our society.
July 15, 2010, 6:46 pmohwilleke says:
She won the case in the U.S. Supreme Court in one of the very few cases to find that a substantive right was created under the privileges and immunities clause. The case was Supreme Court of New Hampshire v. Piper (1985), which held that states may not exclude nonresidents from admission to the practice of law.
Interestingly, despite the American Bar Association’s supposed protectionist “guild” practices, bar associations, particularly the ABA, have been a major force pushing for the liberalization of professional ethics rules governing interstate practice of law. Federal courts have also loosened the requirements for admission to practice before them by attorneys from out of state in recent years.
July 15, 2010, 7:02 pmohwilleke says:
Equally important, the lion’s share of criminal defendants and have no say in choosing their lawyer. A public defender is chosen for them by the Court (or in a handful of states in the South, by the prosecuting attorney).
July 15, 2010, 7:17 pmneurodoc says:
I think it highly improbable that someone who did not attend medical school could in a few months time prepare for a medical licensure exam and pass it. But is it highly improbable that someone who never attended law school could in a few months time prepare for a law licensure exam, that is the bar, and pass it? How about if we took someone who had just passed their CPA exams or was accepted to a top B-school, like Harvard or Stanford, and offered them a substantial cash inducement to take 4 months to have a go at it? They might give some of their time to a BARBRI course and the rest of it to going over Conviser’s (sp?), Emanuel outlines, multiple choice questions, etc., then sit the Multi-State. (Essays might be harder, but perhaps they could manage those too.) Would you bet with confidence that they wouldn’t succeed?
July 16, 2010, 10:55 amBryan J. says:
How much lobbying power do you think is wielded by the likes of Bar exam testing companies?
July 16, 2010, 11:32 amBama 1L says:
What do you mean by “Bar exam testing companies”?
July 16, 2010, 12:11 pmslimpickings2120 says:
I don’t see the main reason why this blog is so hung up on bar exams. The bar is not a hard barrier to entry. It won’t reduce the cost of legal services.
I agree with the others who state that removing the bar exam will not result in any significant drop in the cost of legal services, which I presume on a economic-centric libertarian blog is the primary concern.
As others have said, there isn’t any strong evidence that the bar exam is a case of regulatory capture. Removing the bar exam won’t result in any significant drop in salaries. Corporate law firms already have significantly high amount of applicant. The low end of legal services in this country is already at the 30k-40k mark. It is difficult to get young attorneys to be willing to go into solo practice because the economics of it aren’t worth it. An individual who is smart enough to get into a decent law school, is someone who can find a 30k a year job that requires far less stress than trying to go it alone.
FWIW, I’ve left the law after graduating with median grades from a school (CLASS of 2009) in the 20-25 range because the compensation is too low in the profession. Out of my class, I would say a 25% of the class is not working as an attorney because of a lack of demand in the profession. Salaries aren’t likely to go any lower for public defenders (using that as an example of a lower paying legal job)if you allow more people into the profession.
So what is the benefit of getting rid of the bar. Is this just a general pre-disposition of being anti-regulatory? Is it a concern that the bar discourages people to apply to law school? If that is your concern reducing the cost of law school would be far more important, which could be easily done by making student loans dischargable in bankruptcy.
July 16, 2010, 1:30 pmDavid Sucher says:
I have taken (and passed) only one bar exam but I remember nothing about learning about memorizing “thousands of rules.”
In fact the bar review course told us explicitly that learning rules was irrelevant and that the bar exam was about issue spotting, not getting the rule. The idea was that no way could a lawyer in practice remember every law and that the crucial task was to know enough to recognize a potential issue so as review the statute or case etc.
Issue spotting, not memorization of rules, was the whole task of passing the bar exam. I thought it made sense to me and that as a client I have seen that good doctors, architects, engineers, accountants and in fact every skilled practioner such as auto mechanics and plumbers have the same mindset.
Or did I pass the bar exam purely by accident?
July 17, 2010, 5:00 pmDavid Sucher says:
I have only taken (and passed) one bar exam but I remember nothing about learning about memorizing “thousands of rules.”
In fact the bar review course told us explicitly that learning rules was irrelevant and that the bar exam was about issue spotting, not getting the rule. The idea was that no way could a lawyer in practice remember every law and that the crucial task was to know enough to recognize a potential issue so as review the statute or case etc.
Issue spotting, not memorization of rules, was the whole task of passing the bar exam. I thought it made sense to me and that as a client I have seen that good doctors, architects, engineers, accountants and in fact every skilled practioner such as auto mechanics and plumbers have the same mindset.
Or did I pass the bar exam purely by accident?
July 17, 2010, 5:00 pm