True Or False

True Or False: We Need The Bar Exam To Ensure Lawyer Competence

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The correct answer is false. Instead of ensuring that all legal practitioners are competent, the bar exam (and its long prelude, law school) merely creates an artificial barrier that keeps many people from competing in the market for legal services.

That has two main consequences. First, some people who could earn a pretty good living as attorneys are prevented from doing so; they have to look for work in other fields. Second, some people (quite a large number in fact) are unable to afford legal help when they need it because few of those who do overcome the barrier to entry can accept cases that won’t pay them enough to cover their heavy costs.

But back to the competency question.

Whenever special interest groups seek to stifle competition so those in the group can earn more, they try to justify their restrictions as consumer protection measures. That is exactly what Erica Moeser, president of the National Conference of Bar Examiners told New York Times writer Elizabeth Olson for her March 19 article “Bar Exam, the Standard to Become a Lawyer, Comes Under Fire.” Moeser declared that the bar exam “is a basic test of fundamentals that has no justification other than protecting the consumer.”

Not so, responded law professor and former dean Kristin Booth Glen, who observed that the bar exam “only shores up the guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.” She’s right. In truth, that was the original reason why the legal profession began pushing for high barriers to entry back in the 1920s. The rhetoric was about “raising standards” but the motive was to limit competition in the field.

Lawyer Allen Mendenhall argues in The Freeman that the bar exam does not test competence, but merely one’s ability to memorize a wide array of material. It’s more a “hazing ritual” than a useful means of separating those who could become capable lawyers from those who couldn’t.

“The bar exam tests the ability to take tests,” he writes, “not the ability to practice law. The best way to learn the legal profession is through experience and practical training, which, under our current system, is delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.”

In support of Mendenhall’s argument, it’s worth observing that quite a few eminently capable individuals have failed the bar exam, sometimes several times, among them Kathleen Sullivan when she was the incoming dean of Stanford Law School. Sullivan and the others had not adequately memorized the array of material to pass the exams they took, but that did not mean they couldn’t have competently provided any legal services to anyone.

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