Law

The Case for Replacing the Bar Exam With "Diploma Privilege"

The Covid pandemic strengthens the case for abolishing a requirement that should never have been imposed in the first place.

|The Volokh Conspiracy |

By now, almost everyone recognizes that large gatherings in confined, indoor spaces risk spreading the Coronavirus pandemic. Nonetheless, 23 states are currently conducting or planning to soon conduct in-person bar exams for new applicants for licenses to practice law. Even with precautions, putting hundreds of people in indoor spaces together for many hours at a time creates serious risks of exacerbating the pandemic.

Admittedly, the danger is smaller because most bar exam takers are young and healthy. However, there are still some older bar applicants, such as lawyers moving from one state to another, who need to be licensed in their new homes. And, of course, some young exam takers have health conditions or weakened immune systems, that make them especially vulnerable, as well. In addition, exam takers could potentially spread the disease to others, including some who are older or otherwise more vulnerable to Covid.

I am not one to say that all seriously risky activities should be avoided so long as the pandemic continues. There is, I think, a strong case for moving forward with those that create enormous benefits that cannot be achieved in another way. That, however, is not true of the bar exam, where there is the obvious alternative of "diploma privilege"—giving bar cards to anyone who has graduated from an accredited law school. Four states –Utah, Washington, Oregon, and Louisiana, have adopted this approach in various forms, joining the state of Wisconsin, which has had it for in-state law schools for years. Other states should follow this example.

The standard argument against diploma privilege is that the bar exam requirement is needed to protect consumers from incompetent lawyers. But there is no evidence that bar exams actually achieve that goal, as opposed to serving as a barrier to entry that protects incumbents in the profession from competition. The quality of legal services in Wisconsin has not suffered from its longstanding diploma privilege policy. Bar records indicate that attorneys in that state have disciplinary records similar 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 attorney. That's why, as my co-blogger Orin Kerr puts it, "when it [the exam] is over you can forget everything you just learned."

For that reason, I have long advocated the abolition of bar exams, most recently here:

The reason why you can "forget everything" immediately after the exam is that very little of the material on the exam is actually needed to practice law. It's a massive memorization test that functions as a barrier to entry, not a genuine test of professional competence. That strengthens the case for my view that the bar exam should simply be abolished….

My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn't required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

Defenders of bar exams argue that consumers would otherwise have little or no way to tell whether a given lawyer is competent or not. But, in reality, there are many other signals to determine that. Often, clients hire not a specific lawyer, but a firm. In that event, the firm's reputation is a signal of quality, and firms have an incentive to protect that reputation by avoiding the hiring of incompetents. Even with solo practitioners, quality can be discerned by consulting past clients, and a variety of other mechanisms.

Legal scholar Gillian Hadfield has an excellent article making the case that barriers to information can be further reduced by eliminating prohibitions on the corporate practice of law. If corporations were allowed to provide basic legal services—as they currently do with many other professional services, such as accounting—that would reduce cost and also make it easier to signal quality. When you hire H&R Block to do your taxes, you are relying on the overall reputation of the firm, not on that of the specific person who handles your case. Legal services can work similarly.

These methods are not perfect. But they are likely to be far better than relying on bar exam passage as a signal of quality, since the latter is really just a test of memorization.

One possible alternative to "diploma privilege" is simply postponing bar exams, as some states have done. But that prevents thousands of recent law graduates from earning an income in the meantime—and blocks clients from using their services. If states are unwilling to forego the bar exam entirely, they should at least provide temporary diploma privilege for a period of, say, three years, by which time the pandemic is likely to be over, and bar exams can be safely administered.

Online bar exams are another possible solution. The obvious objection to them is that it is extremely difficult to prevent cheating on an online "closed book" exam. It may well be impossible to ensure that a test-taker doesn't have study guides or reference books with her as she takes the exam. That doesn't bother me too much, because I believe bar exams are a sham credential in any case. But even I recognize there is some unfairness in a format that rewards those most willing to cheat. In addition, not everyone has access to software and internet connections that are likely to be reliable through many hours of exam taking.

On balance, online exams seem preferable to in-person ones, or to keeping law school graduates in limbo until in-person exams become safer. But diploma privilege is a better approach than either.

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

Members of bar exam boards… and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions…. And they should be barred from ever holding those positions again until—you guessed it—they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it)…. This material isn't on the exam because you can't be a competent lawyer if you don't know it. It's there so as to make it more difficult to pass, thereby diminishing competition for current bar association members…..

My proposed reform wouldn't fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

If the knowledge tested on bar exams is so important that we must ensure all practicing lawyers know it—even at the risk of exacerbating a deadly pandemic—then surely that principle applies with extra force to prominent leaders of the legal profession, particularly those responsible for setting professional standards for others. By this reasoning, they should have to take the exam on the same terms as they impose on new bar applicants. If that means taking an in-person exam during a pandemic, then so be it!

On balance, however, I will not insist on this idea, so long as the pandemic continues. I recognize that many bar association leaders are likely to be at special risk, due to age and health conditions. The "modest proposal" might be a useful reform under normal conditions. But it would be wrong to impose it now.

We should not require bar leaders to risk their lives and health for no good reason. But they, in turn, should not impose such risks on others.

Finally, critics may argue that, as a law professor, I have a self-interest in promoting "diploma privilege." My brief response is that I have also long advocated abolishing or at least reducing the requirement that all lawyers attend ABA-accredited law schools, as well. I have also long advocated a variety of other reforms that would have the effect of reducing the demand for law school education and legal services generally—most notably reducing the number and complexity of laws.  I don't claim diploma privilege is the optimal regulatory regime, merely that it's superior to system under which lawyers are required to both have a diploma and pass a worthless bar exam.

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  1. There are already too many lawyers abolishing the bar exam isn’t going to fix that. They should have taken a page from the AMA strategy of artificial limits to the population of doctors to protect their racket.

    1. There is a real tension between two constituencies. You have those who want the bar exam to keep out competition, but you also have very low bar passage rates for minorities. This is going to come to a head, one way or another.

      For other standardized tests, those are falling like wheat in the fall to the diverso-crats, but then again, those people don’t have an entrenched job protection racket going against them either, like those in favor of the bar exam do.

      1. ” You have those who want the bar exam to keep out competition, but you also have very low bar passage rates for minorities.”

        Or is that “…low bar passage rates for those who do not adequately know the subject matter”

        1. Yea, whatever. I’m not sure if I’m being baited or not, but if you want to get super specific, of those who don’t pass the bar for not knowing the subject matter, this happens at high rates for minorities.

    2. Are there too many lawyers or are they just allocated in an inefficient manner?

      1. There are more lawyer per capita in the U.S. than any other country in the world. We have a very litigious society. Maybe we don’t have enough, though, suing over the right things. Of course, what is a right thing to sue on is very subjective.

        I would say, rather, that the human capital from lawyers is inefficiently allocated across society. Lawyers extract income from existing systems, taking it off the top, in other words, like overhead. Our society should have more engineers or talented teachers or businessmen. The artificial constraints placed on the number of lawyers, making them earn more than they would otherwise, warps market signals, leading to this less than optimal allocation of human capital.

        1. I definitely agree we are litigious. And we always have been.

          I guess what I’m thinking of is that we’ll often (but not always) have the best and brightest allocated to big firms and businesses racking up billables for stuff that doesn’t need it whereas the gravest areas, like criminal law, are often performed by overworked underpaid (and often unqualified) people given the stakes involved i.e. life and liberty.

        2. For a second I thought your username was mad kulak and I was like, how that’s provocative for a blog where a lot of the posters are Russian Jews

          1. My name is based on this fictional character: https://darksun.fandom.com/wiki/Kalak

  2. Our state has an essay component to its bar exam. I have participated in grading these essays for many years. If you saw what I have seen across these years, you would definitely want MORE barriers to admission, not less. As a practicing lawyer myself, I don’t want all these people in our profession–they are a hazard to their prospective clients. Perhaps the law schools SHOULD do this weeding out, and maybe the elite law schools do. But trust me, many law schools very obviously do not.

  3. I still view the main issue as one of courts and disciplinary systems routinely failing to scrutinize lawyers and hold them to account. Maybe the bar exam does keep out some unqualified people. Maybe it doesn’t. Regardless the unqualified, or worse yet, unethical people can still easily pass the bar exam if they put their mind to it. Once they do, the system protects them for far too long while those lawyers (who can also eventually become judges where they are further protected) harm clients or the public.

    A robust disciplinary system that focuses on current bad lawyers rather than trying to keep potentially bad ones out based on barely relevant criteria would benefit everyone far more.

    1. Not being in the law profession myself, could you be more specific about a failing disciplinary system for lawyers, providing an example or two?

      1. Sure. So I guess I can only speak for my state, but I have found that the State Supreme Court will issue a lot of one or two year suspensions (with portions stayed) to very experienced lawyers who are very neglectful of client matters or for routine lying including lying in the disciplinary proceedings. Some of their conduct usually indicates that the this was a pattern of poor behavior that has never been caught.

        So there was one where a lawyer had screwed up six different client matters in felony cases and got a two year suspension one year stayed.

        Another forged an appellate brief to the disciplinary authorities to “prove” he was going to submit one in a case that he never did. Two year suspension, one stayed.

        Another got a six month suspension from claiming settlements were low to attorneys who worked with him on the case when in fact they were high value.

        Usually the disbarments happen after several disciplinary cases.

        Occasionally you will see an indefinite suspension for truly egregious conduct, but the norm is brief suspensions for conduct that is often reflective of patterns of bad behavior. And once they get back in, they probably won’t be indefinitely suspended or disbarred if they end up before the Court.

        1. Those examples are cringe worthy.

          1. Like they’re bad at supporting what I say or at how the court is treating those cases?

            1. Yea, I understand your skepticism due to our divergence on a host of other issues.

              I mean, those examples are cringeworthy in that, in my opinion and yours, that those people shouldn’t be lawyers anymore.

              1. Oh gotcha. Thanks. It could be possible I was being too harsh. But, a lot of time I read the disciplinary cases, and I think: this sanction is very weak and based on what kind of conduct I know they engaged in I can only imagine all the ways they harmed clients/the public that either were never discovered/investigated or the disciplinary counsel didn’t think were worth pursuing.

  4. If the bar exam is designed to test applicants for minimal competence, why not allow students to take it anytime after their first year in law school? With the MPRE, you can take that test any time after you have passed the mandatory legal ethics class. Allow students to take it during law school to display minimal competence. And if there is a subject matter that they struggle with to the point that it causes them to fail the exam, they can register for more classes in that area to shore it up.

    Ideally, a student should be able to graduate from law school on a Friday and be sworn in to the bar on the following Monday.

    1. Agreed! I think there is definitely a good argument to model it after the MDs where they have to pass boards during their time in Med School to be able to continue. Perhaps more of a focus on purposeful clinical work and apprenticeship would benefit the whole practice as well in addition to this?

  5. Is there any actual data on whether the bar exam keeps unqualified people out of the profession? I’d like to see some actual evidence one way or the other.

  6. I would go the other way. Keep the bar exam but make it a good test of the skills a lawyer needs. Don’t require people to get a law degree first.

  7. I agree

    And also:
    ….obvious alternative of “diploma privilege”—giving licenses to anyone who has graduated from an accredited MEDICAL school.

    After all, why put physicians at risk of taking Board exams?

    1. Physicians do not need to be Board certified to practice. But if hey want to be at a prestigious teaching hospital or medical school they’d better be. In fact now physicians entering the profession after 2010. Must pas the Boards again after 10 years.

      1. Actually, in order to be licensed in any state of the US, physicians must pass the USMLE Step 1, USMLE Step 2CK (clinical knowledge), USMLE Step 2CS (clinical skills) and USMLE Step 3 exams.

        “Board” exams happen *after* state licensing and are in connection with residency in a specialty.

  8. Having actually been in law school I am aware that one can get high grades and yet come out with no sense of how to be a good lawyer and even have only a superficial knowledge. The “top” law firms want 25-year-old test-taking machines. Unfortunately not people who would make good lawyers.

    Bar exams are needed, but should be revamped, somewhere along the lines of, “You don’t have to know all the facts, just know where to find them and which will be important.”

    1. One can also think about other licensing exams. For example do you an engineer who cannot pass the professional engineering exam certifying the design of a bridge?

  9. It’s not rocket science. If you want to use testing as a way to keep incapable people out of the field, then the tests should reflect the work that lawyers actually do. Further, the tests should be practice-area specific. Say you want to be licensed to handle tort cases, then you get an imaginary case assignment and must research the law and plan a strategy accordingly. You submit your drafted docs, then are given a second assignment, wherein your imaginary opposing counsel makes some maneuver which you must now respond to.

  10. The “essay” portion of the bar exam expects candidates to arrive at conclusions in one hour (each) on between three and six (it was six in my day) complex situations requiring application of law to murky facts–all without benefit of access to research materials, after the appropriate blocking software is installed on candidate laptops.

    There’s a word for the practice of law that way outside an exam room–malpractice (with discipline afterwards a possibility). Why do we have an “exam” system asking candidates to perform in a matter even the “least” qualified would never dare attempt in real life?

    1. Good points. We’d be sued for malpractice if we practiced like this for sure!

  11. Don’t they have exams in law school? How many practicing attorneys could sit down and pass all those tests after years of specialization? As someone outside the field I don’t know, but it would seem to be analogous to passing the bar exam itself, and undercut one of the arguments for abolishing the bar exam. Or perhaps either graduation from law school OR passing the bar should suffice. I recall reading in a biography of Calvin Coolidge that he simply went to work for a law firm out of college while studying for the bar.

    You can be hired as an engineer right out of college but after several years you can take the “professional engineer” exam and have PE as an additional (and valued) credential. Would something like that be useful in the legal profession?

  12. There are at least several issues at play:
    (1) Administering a bar exam in the midst of a global pandemic.
    (2) The efficacy and need of a bar exam in general.

    In regards to the first issue, we obviously cannot have in-person examinations during the pandemic. That much is clear.

    In devising a solution to the first issue, the second issue starts to creep in. Let’s acknowledge the plain fact that the bar exam is awful for a multitude of reasons: Both the exam itself and the test prep courses are absurdly expensive; the exam is held AFTER you graduate law school, which only serves to prolong the start of your career and waste precious time that you could be using to earn money to go towards your student loans; it doesn’t indicate your competence as an attorney; you will not encounter most of the exam topics in your career; it in essence discriminates against minorities; it is classic gatekeeping of the profession. So I am all for a radical change to the bar exam itself, and I am open to abolishing it completely.

    HOWEVER, it might be appropriate to “gatekeep” under the current circumstances for a short period of time, which is why diploma privilege is not the best solution RIGHT NOW. There is mass unemployment in the legal profession, and the economy at large has essentially been in a weird area of limbo ever since the lockdown ended. To pause and/or decimate the legal profession for practicing attorneys, then flood the legal profession with thousands of recent graduates who can immediately practice law because of diploma privilege (including those graduates that would have failed the bar exam, which is ~20% of them), doesn’t sit right with me.

    Another way of looking at it is that the sacrifices are not evenly distributed, and diploma privilege will only exacerbate that. In general, the class of 2020 did not have their lives uprooted due to the pandemic…they still graduated on time. Practicing attorneys faced the consequences of the pandemic though through unemployment. Considering we told nonessential workers that they couldn’t work for a period of time, we can tell law school grads that they can’t flood the market just yet (especially considering there will be ~20% more of them than usual due to diploma privilege).

    At the very least, if you are going to consider diploma privilege, please do not let it go into effect until Oct/Nov at the earliest. Under normal circumstances, law students take the July bar exam, receive their results in October, and might not get admitted to their state bar until weeks after that. It’d be crazy if the class of 2020 could avoid taking the summer bar exam, and suddenly be granted diploma privilege right then and there.

    And I want to make it clear that I have sympathy for the class of 2020. Dealing with a bar exam during a pandemic is awful. But there are plenty of practicing attorneys that are struggling too. Think about the graduates from the class of 2019 and earlier that made huge life decisions based on their employment (maybe they bought a house or decided to have a child), only to have it ripped away because of the pandemic.

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