The Case for Changing the Bar Examination With “Diploma Privilege” –

    9 - Free Minds and Free Markets

    Almost everyone is now realizing that large gatherings in confined spaces can spread the coronavirus pandemic. Nevertheless, 23 states are currently conducting personal bar exams for new applicants for admission to the bar or are planning to do so shortly. Even with precautions, assembling hundreds of people indoors for many hours at the same time carries the serious risk of worsening the pandemic.

    Admittedly, the risk is lower since most of the lawyers are young and healthy. However, there are still some older lawyers, such as lawyers, who move from one state to another and need a license in their new home. And of course, some young examiners have health problems or a weakened immune system, which makes them particularly vulnerable. In addition, investigators could potentially spread the disease to others, including some who are older or otherwise more susceptible to Covid.

    I cannot say that all seriously risky activities should be avoided as long as the pandemic continues. I think there is a strong case for driving those who create tremendous benefits that cannot be achieved in any other way. However, this does not apply to the bar exam, where there is the obvious alternative to the "diploma privilege" – the issuance of bar cards to anyone who has an accredited law school. Four states – Utah, Washington, Oregon and Louisiana – have adopted this approach in various forms and have joined the state of Wisconsin, which has been offering it to state law schools for years. Other states should follow this example.

    The standard argument against the diploma privilege is that the bar exam is required to protect consumers from incompetent lawyers. However, there is no evidence that legal exams actually achieve this goal, rather than serving as an entry barrier that protects established companies from competition. The quality of legal services in Wisconsin has not suffered from the longstanding diploma privilege policy. The attorney's records indicate that lawyers in this state have similar disciplinary records to those in other states.

    Such results are not surprising. The truth is that the bar exam is a test of arcane memorization, not a test of whether the applicant is likely to be a good lawyer. So, as my co-blogger Orin Kerr puts it, "when it's over, you can forget everything you just learned."

    For this reason, I have long been in favor of abolishing the bar exams, most recently here:

    The reason why you can "forget everything" immediately after the exam is that very little material for the exam is actually needed to exercise the right. It is a massive memorization test that acts as an entry barrier and not a real test of professional competence. This confirms that the bar exam should simply be abolished.

    My general point of view about bar exams is that they should be abolished, or at least you shouldn't be required to pass one to practice as a lawyer. If passing the exam is really an indication of superior or at least reasonable legal skills, clients will hire lawyers who have passed the exam, even if the pass is not required to be a member of the Bar Association. Even if a mandatory bar exam is really necessary, it should under no circumstances be carried out by state bar associations that have an obvious interest in reducing the number of people allowed to join the profession to minimize competition for their existing members.

    Lawyers' defense lawyers argue that otherwise, consumers would have little or no way of determining whether a particular lawyer is competent or not. In reality, however, there are many other signals to determine this. Often clients do not hire a specific lawyer, but rather a law firm. In this case, the company's reputation is a signal of quality, and companies have an incentive to protect that reputation by avoiding the hiring of incompetent people. Even with individual practitioners, quality can be determined by consulting previous customers and by a variety of other mechanisms.

    Legal scientist Gillian Hadfield wrote an excellent article explaining that barriers to information can be further removed by removing bans on corporate legal practice. If companies could provide basic legal services, as is currently the case with many other professional services such as accounting, this would reduce costs and facilitate signaling quality. When you hire H&R Block for your taxes, you rely on the general reputation of the company, not the person who is handling your case. Legal services can work in a similar way.

    These methods are not perfect. But they're probably far better than relying on passing a bar exam as a quality signal, as the latter is actually just a memorization test.

    A possible alternative to the "diploma privilege" is to simply postpone the bar exams, as some states have done. However, this prevents thousands of recent law graduates from earning an income in the meantime – and prevents customers from using their services. If states are not prepared to completely waive the bar exam, they should grant at least a temporary diploma privilege for a period of, for example, three years. At this point, the pandemic is likely to be over and legal exams can be safely conducted.

    Online bar exams are another possible solution. The obvious objection to them is that preventing an online closed book exam from cheating is extremely difficult. It can be impossible to ensure that a test participant has no study guides or reference books with them during the exam. That doesn't bother me too much, because I believe that bar exams are definitely a sham exam. But even I realize that there is a certain injustice in a format that rewards those who want to cheat the most. In addition, not everyone has access to software and Internet connections that are likely to be reliable over many hours of testing.

    Overall, online exams seem to prefer personal exams or keep law graduates in suspense until personal exams become more secure. But the diploma privilege is a better approach than both.

    For those states that persist in holding personal exams during a pandemic, I am tempted to revive my "modest proposal" for a bar exam reform (first developed many years ago):

    Members of bar exam panels … as well as presidents and other senior officials from state bar associations should be encouraged to take and pass the bar exam each year by receiving the same score that normal test takers require. Those who fail should immediately be dismissed from their positions. And they should be prohibited from ever holding these positions again until – you guessed it – they pass the exam and pass it.

    If the bar exam covers material that every practicing lawyer should know, the lawyers who run the bar association and administer the bar exam system themselves should be aware of this. If not, how can they possibly be qualified for the positions they hold? It is certainly not an excuse to say that they knew it when they took the test themselves, but have since forgotten it. How can a client rely on a lawyer who has no basic knowledge, even if he knew it years ago?

    Of course, only a few, if any, officials from the bar exam or state attorneys could pass the bar exam without extensive additional studies (some might even fail) … This material is not under examination because you cannot be a competent lawyer if you do not know it. It is there to make passing difficult and thereby reduce competition for the current members of the bar.

    My proposed reform would not fully solve this problem. But it could greatly reduce it. If members of the bar exam committee and head of the bar association had to take and pass the exam each year, they would have strong incentives to reduce the number of minor things tested. After all, you have to remember everything you include in the exam! However, as prominent practicing lawyers, they are probably already familiar with the laws that are so fundamental that every lawyer needs to know them. By limiting the exam to these rules, you can minimize your own preparation time. In this way, the material tested during bar exams can be limited to the relatively tight legal rules that an average practicing lawyer really needs to know.

    If the knowledge that has been tested in legal exams is so important that we need to make sure that all practicing lawyers know it – even if there is a risk of a deadly pandemic worsening – then this principle applies particularly well to prominent legal professionals , set professional standards for others, especially for those responsible. For this reason, they should have to take the exam under the same conditions that they impose on new lawyers. If that means taking a personal exam during a pandemic, let it be!

    All in all, however, I will not insist on this idea as long as the pandemic continues. I am aware that many law firms are at particular risk due to their age and health conditions. The "humble proposal" could be a useful reform under normal conditions. But it would be wrong to enforce it now.

    We shouldn't require law firms to risk their lives and health for no good reason. However, you should not impose these risks on others.

    Finally, critics can argue that as a law professor, I have a self-interest in promoting the "diploma privilege". My short answer is that I have long been in favor of abolishing, or at least reducing, the requirement that all lawyers also attend ABA-accredited law schools. I have also long advocated a number of other reforms that would result in a reduction in the demand for legal education and legal services in general – particularly by reducing the number and complexity of laws. I am not suggesting that the privilege of a diploma is the optimal regulatory system, but only that it is superior to the system that lawyers both need to have a diploma and pass a worthless bar exam.


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