Don’t abolish bar exams, abolish law schools

This post underwent a major edit on 8/8/21. tl;dr version of this post:

  • If people are really interested in increasing access to the profession, they would propose abolishing the requirement that prospective lawyers enroll in $250,000 law school courses which take 3 to 4 years to complete.
  • The cost of attending U.S. law school is 3-6x the cost of a comparable overseas education. I should know; I’ve done law school twice (once in England and once in the USA).
  • Students would still probably attend law schools as a signaling exercise, as they do with the MBA. But the important thing is: they wouldn’t be forced to.
  • Law school is the single most time-consuming and expensive prerequisite for, and deterrent to, admission as a lawyer in the United States.
  • The absurdly-named “juris doctor” is not a doctorate, it is a survey course. It can be learned through book study or online just as easily as in person.
  • Despite the lofty name of the degree, in any given year up to 20% or more of the country’s juris doctor graduates fail to master the material and this translates into failure on the bar exam on the first attempt. The pass rate varies widely by state and by date of administration; California’s Feb 2020 bar pass rate was a mere 26%, for example, where its July 2019 pass rate was (a still very low) 50%. Although this increases to 90 per cent. on a two year timeframe for ABA-accredited graduates on a national basis, we should assume a lower pass rate overall, and a considerably lower pass rate for schools without ABA accreditation.
  • Legal academics propose to address the issue of students who cannot pass the bar by making a juris doctor, not bar passage, the prerequisite for professional licensure, plus either extra courses or a period of supervised apprenticeship.
  • Such proposals exhibit NYC-taxi-medallion levels of rentierism. Lowering standards to wave these students through does nothing to address the obvious inequities of forcing unemployed twentysomethings to take on a quarter-million dollars of debt to obtain professional licensure.
  • Supervised apprenticeship proposals are not a cure-all, either, as countries which have employed them (England and Wales) have actually instituted bar exams due to the fact that apprenticeship requirements have made it harder for law graduates to obtain admission, since admission to practice was predicated on getting a job with a legal employer and there are more law graduates than there are law jobs.
  • Even in the United States, among students passing the bar, competition for legal employment is ferocious. Making legal employment a prerequisite to admission will necessarily make it harder, not easier, to become admitted.
  • Abolishing the law school requirement and allowing people to take the bar exam, MPRE and state law tests e.g. NYLE via independent study in their free time at their own pace, straight out of college, could reduce costs of attaining admission by up to 98.8% without lowering standards for students who elect to self-study, would allow students to read law as an undergraduate discipline as is commonplace in other countries, and would permit new lawyers to start their careers without a penny of additional debt.

Long version of this post:

Utah has done the unthinkable: it has cancelled its bar exam and decided to admit future lawyers, for one year only, on the basis of diploma privilege.

I joke, but only a little. Covid-19 is the sort of force majeure scenario which justifies such a drastic course of action, although I’m sure that prospective lawyers in Utah from the law schools that benefit from the so called “diploma privilege” exemption aren’t crying themselves to sleep every night over the fact that they didn’t have to take what is, by any account, the worst thing most lawyers will ever have to do.

Which is not to say that I regret taking the exam myself. Far from it. I am glad I took the test. I felt incomplete being an American citizen and English lawyer who hadn’t passed the test. I will remember the day I passed it (first attempt, fyi), and the day I was sworn in about 35 days later, for the rest of my life. I am particularly glad that, unlike these poor souls in Utah, I will never have to endure the asterisk: “Well let me tell you, when I was your age I remember passing the bar exam… you didn’t have to take the bar exam?… well LET ME TELL YOU…” …that every law partner in Utah will tell to the Class of 2020 for the next twenty years.

Of course, legal academics and legal education observers, who love to talk and thinkpiece their way through life, have now begun to contemplate the implications of not holding the exam – not just this year, but permanently. I’ve seen this argument made a hundred different ways over the past ten years. Recently Law360 ran this article – Don’t Just Delay the Bar Exam, Cancel it Forever – in which an attorney wrote that

Law students go through three years of legal education (or not) and have to take exams in all the required courses (and some electives). More and more law schools are providing clinical education and courses about law practice management. And while the profession questions whether today’s law students are prepared to be lawyers, we still make them sit in a large ballroom or convention center for two or three days and answer questions about legal concepts.

Another articleIs the Bar Exam Necessary? written by Stephen Foster of Oklahoma City University, tweeted below by a law professor from Ohio State, had this to say:

From the article:

Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public. They espouse the MBE’s greatness through reliability and validity. Their argument is an objective MBE is fair, and thus the best assessment. The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law...

I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys’ experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

This is a garbage argument, because (a) the bar exam does not test competence and (b) a bar test-taker’s competence to practice law the day after the exam is non-existent or very close to it.

Here is a picture of some students in a math lecture which I am including here just so that there’s an academic-themed thumbnail with this post. Pixabay licensed.

Virtually no law student is competent to practice on the day they leave school, or even on the day they pass the bar exam. They have never practiced law a day in their lives; they have no idea what awaits them. Competence at law practice can only be acquired and added to through experience, “on the streets,” with actual clients and actual legal work. Law school is about teaching students the language and logic used in law practice, not practice itself.

“The criteria for admission should be competence” is therefore little more than a pretty lie we tell ourselves. We cannot make policy based on a lie, however convenient it may be.

What we really mean, and what we should say, is that the bar exam is a test of intelligence and mettle, to be combined with a background investigation that assesses moral fitness. Brilliant candidates can and do fail if they do not put in the work; the most determined candidate can and does fail if they’re just not cut out for it (one of the test takers in Connecticut in 2018 had taken, and failed, the exam something like 13 times). Nobody admits this because doing so would offend test takers, particularly those who do not pass, and law school professors, particularly those at schools with low pass rates.

“Protecting the public,” “ensuring lawyers are competent,” blah blah is all doublespeak designed to avoid stating the obvious, and uncomfortable, fact that, while all lawyers make mistakes, dumb and undisciplined lawyers have the potential to make many more mistakes than average. The exam serves as an intellectual hazing ritual which weeds out less able candidates by testing a huge battery of basic knowledge the bar has decided students must have, even if they will never use it, much like medical boards which young doctors must take.

Seeing and understanding that material easy-does-it, steady-as-she-goes, at a slow pace, as students do in law school, with the assistance of group outlines, in many cases tested by open-book or even open note(!) exams, is easy; most 3Ls don’t flunk out, whereas anywhere from 25-50% of 3Ls fail the bar exam, year after year. Having enough familiarity with the material to comprehend problem questions and compose answers on the bar exam proves the student has at least seen the material once, has mastered it, and is smart enough to recall it and form coherent thoughts about it in an immensely high-pressure situation.

(The Common Professional Examination battery of academic law exams in England, by contrast, is not open-book, is 100% essays, expects detailed knowledge of case law and takes 21 hours over 10 days rather than 12 over 2 days. It was considerably harder than U.S. law school finals and in my opinion it was moderately harder than the Uniform Bar Exam, although perhaps has a higher pass rate since re-sits are permitted if a single CPE module is failed, whereas the UBE is a one-shot deal and must be retaken from scratch if failed. (Unlike the UBE, one’s CPE score matters for future employment prospects, so a failure on a single CPE module, even if cured, will be regarded as disqualifying by many English legal employers just as bar exam failure would be in America.)

Passing the bar exam requires a lot of hard work to commit information to memory, and sufficient intelligence to be able to apply it to problem questions. I would agree with the authors above that possessing a certain number of IQ points and a willingness to work one’s ass off is not, in itself, enough to say a test-taker is competent to practice law — how could it be? — but it is a good indication of some of the basic qualities a lawyer needs to possess in order to serve a client effectively, chiefly, intelligence, the ability to process information while operating with a degree of expeditiousness, the ability to express him or herself coherently and the willingness to focus one’s efforts and work very hard to achieve a singular, arbitrary objective that a third party has set.

Lawyers, like doctors, must fuse practical competence with intellectual competence. A heart surgeon may have outstanding manual dexterity, but failure to match skill with the hands with wider medical knowledge necessary to treat the whole person – failing to demonstrate an ability to master of the basic corpus of medical knowledge required to pass the boards – should be disqualifying. So it is and should be with law.

I therefore think the bar exam is actually not so bad as its detractors portray it. This state of affairs is unfair, of course, as life is unfair. By the same token, so is the requirement that most students must complete three years of postgraduate study before being allowed to sit the bar exam; that is particularly unfair, especially for bright students from low- and middle-income backgrounds who might be in a position to just avoid all the fuss, take a bar review course and sit the exam. (We do not often hear it said by legal academics, “abolish the law schools and allow college graduates to proceed directly to the bar, because taking three years of life and $200,000 in federally-guaranteed student loan debt which is applied towards our salaries from aspirational young people is unfair!”)

The question then is not “should we abolish the bar exam because it is unfair?” The question should be whether the bar exam is the least unfair or least bad option to ensure that individuals possessing the requisite intelligence and drive to be lawyers, become lawyers, so that there may be adequate competition for legal services at the same time as the public is protected and the administration of justice remains efficient.

Due to economics, “Diploma Privilege Plus” is probably less fair than the bar exam

The alternatives seem to be one of two things. “Diploma privilege,” where obtaining a law degree is on its own sufficient to practice, and “diploma privilege plus,” meaning the bar exam is waived, but students have to practice under supervision of a senior attorney for a time.

Except for a few odd jurisdictions like Wisconsin, pure diploma privilege is not practiced; in my view, nor should it be, as this takes responsibility for testing newly graduated students and puts it in the hands of the universities, which are not to be trusted seeing as their incentives are to ensure all their paying students pass. Per ATL,

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“Who does all the supervising?” ATL asks. The answer is “probably no-one,” at least in an economic depression. “Diploma Privilege Plus” will have three consequences.

1) There are those who argue the bar exam is an undue financial burden (about $1,000). Under Diplo Privilege Plus (“DPP”) The price of admission to the legal profession is the cost of three years of law school, which is much more expensive than the administration of the bar exam (for those folks who argue that the bar exam is an undue financial burden).

2) DPP requires all prospective candidates for admission to first find a lawyer willing to oversee them for a period of apprenticeship. Employment is a qualitative exercise rather than a quantitative one. The well-connected and well-educated will be first in line for those jobs, much as they are today. Except, where today being poorly-connected might result in a lower salary, under DPP being poorly-connected might mean not getting admitted at all.

3) In the worst economic crisis in living memory, DPP might make it appear superficially easier for students to pass through the gates. We cannot know what will happen in advance, but if I had to guess, I’d think that if DPP were rolled out in a depression, the number of law jobs available for prospective attorneys would fall dramatically, acting as an absolute cap of the number of attorneys that will be admitted in that year, regardless of ability.

There’s a system that worked like this. It’s called England and Wales.

As it happens, I’m one of very few Americans I know of – I know of two others – who were first admitted in England. Of the three of us I’m the only one who decided to come home and get admitted again. (It’s a lot of school.)

In England, after law school one is required to undertake a one- or two-year apprenticeship (depending on whether you’re a barrister or solicitor) before you’re admitted. If you get an apprenticeship a few years ahead of time, the firm (often) will pay for law school and give you a stipend to live on.

Not bad, right? Well, it’s a contract, and as such, it cuts both ways. During your apprenticeship, you are bound to that employer; your pay is considerably lower than that of a junior associate at a comparable firm in the United States; leave your job, and your entry into the profession will be more or less permanently denied (no-one will re-hire a trainee who quit).

For law students now thinking that “diploma privilege plus” might seem like a *great* idea, a word of caution. “Lawyers pay our law school fees! No exam, we can get straight down to work!” Sure, fine. The problem is that, unlike in the U.S., before you can get admitted you have to get a job – and get a law firm to commit to keeping you on its payroll for a fixed two year term up front – before you can practice.

When I moved to the United States to get my U.S. admissions in order, it was hard to get a big firm job because my qualifications were so nonstandard. I hung out a shingle, opened my own practice and built a book of business from scratch. Making the price of admission the passage of a bar exam allows this – it allows people to take and pass a test, and then get to work without anyone’s permission.

“Diploma Privilege Plus” takes that power away from test takers and gives it to law firms. Amid a worsening economic crisis it’s not hard to see why “diploma privilege plus” might be a bad idea. If you thought the bar exam was a barrier to entry, apprenticeship programs – properly, “training contracts” – are *way* worse. If the number of law students exceeds the number of places, it is a guarantee – an absolute certainty – that everyone who wants to become a lawyer won’t, even if they’re good enough, because a prerequisite to qualification is legal employment for a fixed term.

After a certain number of attempts, many people give up – law firms won’t hire someone whose degree has gone “stale.” Because of the two-to-three year time delay and the fact that trainee or pupil hiring, not bar passage, determines the supply of legal manpower for that cohort over that cohort’s entire lifetime, the supply of lawyers is generally constrained – in recessions capacity is cut, and in boom times it’s very difficult to bring new capacity online. As a result, in economic booms – particularly the late nineties boom which created financial services powerhouses like Clifford Chance and Allen & Overy – the larger firms had to resort to hiring and requalifying large numbers foreign-qualified lawyers from other common law countries when short-staffed, rather than growing their teams from a domestic pool of talent.

In fact, the apprenticeship model proved such an insurmountable barrier to entry to the profession that England and Wales decided to institute a bar exam – properly, the “Solicitors’ Qualifying Examination” – starting in September 2021 because the apprenticeship model was unable to provide enough jobs to law school graduates to permit them to proceed to admission.

The law grad/job availability ratio in the UK is something like 6:1 in any given year, 10:1 (or worse!) for barristers. I dread to think what it will look like in September 2021, after four admission cycles (two per annum) dealing with COVID-19.

So diploma privilege plus may look great in the eyes of a student who doesn’t want to take the bar exam (none of us wanted to, let’s be honest, but we did it anyway) or the dean of a crappy law school with a low bar passage rate. But law firms are not stupid, crappy law schools are still crappy, and in countries that have “diploma privilege plus” apprenticeship, access to the profession isn’t easier for the sort of candidates who couldn’t under any circumstances pass a bar exam, because (generally speaking) their college and law school transcripts are disqualifying. Failing a module, for example, is grounds at many firms for revocation of a training contract, even if the student passes an exam on a re-take and subsequently passes the course. A training contract revoked in this way is for all practical purposes impossible to replace.

In terms of conversion of successful law graduates into actual, practising (British spelling) solicitors and barristers, then, “diploma privilege plus” makes things considerably more difficult. This means there are significantly fewer lawyers: in the UK there are 140,000 solicitors and 13,000 barristers – you read that correctly, one hundred forty thousand and thirteen thousand – on a population base of 66 million, with private schools and elite universities heavily over-represented in that group.

In the U.S. there are approximately 1,338,000 lawyers – roughly 9 times as many lawyers – on a population base five times as large, all of whom have higher rights of audience (a right which, in England, is the exclusive preserve of the barristers and the occasional solicitor-advocate).

There are cultural reasons for this, as well as legal ones (e.g. the fact that England operates a loser-pays system for litigation costs). But there are also economic ones relating to hiring entry-level candidates. The apprenticeship requirement is one of them. I have a number of close personal friends who attended elite universities but tripped up on that final leg of the race to admission, and now work in legal-adjacent fields like risk and compliance – but who are not lawyers.

The reform which will achieve the most equitable results to the process of admitting lawyers to practice would be to abolish the law school attendance requirement

Some people aren’t cut out to be lawyers. Nobody disagrees there should be a barrier to entry to the legal profession. The question is what that barrier should be.

Personally, I would have preferred then, and still prefer now, having an objective, anonymously-graded test, lasting two days and costing $800, to be that barrier. If people are really interested in increasing access to the profession, they would propose abolishing $250,000 law school courses which are the single most time-consuming and expensive prerequisite for, and deterrent to, admission as a lawyer in the United States. 

The American first degree in law – the absurdly-named “Juris Doctor” – is not doctorate. It involves little to no advanced subject matter research. It requires little close supervision. It’s a survey course which prepares people to take the only test that matters – you guessed it! – the bar exam. Especially now that everyone has gone full-remote during COVID-19, there is absolutely no reason that law schools should cost what they cost; the books are the same at every school, the entire thing should be administrable as a MOOC and it should be optional. Abolishing law schools and making the bar exam harder to compensate would make admission to practice purely merit-based and capable of being accomplished by persons with very limited financial means.

The “Diploma Privilege Plus” crowd would abandon the test, still require prospective entrants to our profession to debt-finance, with interest, hundreds of thousands of dollars to subsidize legal academics and university administrators, and when they’re done with that process of being robbed by a cartel of law professors for a survey course that could easily be done in one’s free time, then force new law grads to deal with hiring managers, professorial references, work visas and the labor market in a quest to secure a two-year, underpaid, apprenticeship which they may never obtain.

“Diploma Privilege” is another way of saying the law school admission standards (however low they might be), law school administrators (whatever their politics might be), and legal hiring managers (whatever their economics might be), and not an anonymous, objective standard established by a uniform test graded by the NCBE and by members of the bar, should decide who is qualified for admission.

No thanks.