Stephen Carter Makes the Case for Barring the Bar Exam

The famous columnist and Yale Law School professor points out that the case made against other standardized tests, such as the LSAT, also applies to bar exams.

(NA)

In a recent article in Bloomberg, prominent columnist and Yale Law School Professor Stephen Carter makes the case for abolishing the the bar exam as a requirement for admission to the legal profession. As he points out, the arguments usually advanced for abolishing the LSAT as a requirement for admission to law school also apply to requiring passing the bar exam as a precondition for entering the legal profession:

Should law school applicants still have to take the LSAT? A proposal by a committee of the American Bar Association would eliminate the longstanding rule that accredited law schools must require prospective students to take a "valid and reliable test" as part of the application process. If the LSAT is axed, maybe the bar exam should be next.

The recommendation to eliminate the admissions testing requirement comes amidst cascading charges that reliance on the Law School Admission Test hurts minority applicants. The proposition is sharply contested by many friends of diversity….  Some find it stigmatizing to be told they can't do as well on the test as White applicants. But given that the case against the test appears to have persuaded the wordily named Council of the ABA's Section of Legal Education and Admissions to the Bar, let's assume for the sake of argument that the LSAT does indeed represent an unfair barrier to entry to the legal profession.

Why doesn't the same argument apply to the bar examination?

I'm serious.

Except in Wisconsin, nobody can practice law without passing the bar examination. Some states — California is the most prominent — require even lawyers who are licensed elsewhere to pass an examination if they want to move into the jurisdiction. Such rules function as classic barriers to entry, easily manipulated to keep the supply of lawyers low.

Moreover, the ABA admits that minority bar examination passage rates continue to lag. A 2021 study found that a rising percentage of non-White students at a law school is correlated with a reduction in the school's bar passage rate. Hmmm. If the LSAT is a problem because of its supposed effect on diversity, maybe the bar examination should join it in the waste bin. Or the exam could be optional, leaving employers to decide whether they want to require it.

The barrier to entry, even minority entry, might be justified if we could point to the vital public purpose the bar examination serves. That's harder than one might suppose….

Don't get me wrong. I'm not against standardized testing in every circumstance. For example, I'd support a plan under which the bar authorities would follow the medical profession in requiring a certification process before members can market themselves as specialists in particular fields. But there's no persuasive justification for forcing graduates of accredited law schools to jump through yet another hoop before they're allowed to practice their trade.

I've been on the anti-bar exam bandwagon for many years now. I first made the case for abolition back in 2009, along with a "modest proposal" for reform in case abolition turns out to be politically infeasible. I am pleased to welcome Prof. Carter to the small, but hopefully growing, Bar the Bar Exam movement! His eloquence and stature in the legal world might enable him to win more people over to the cause than I ever could.

He is absolutely right that the case against the LSAT also applies to bar exams. Carter is also right to point out that if bar exam passage had real value in predicting a lawyer's competence, employers could just adopt the requirement voluntarily. I made a similar argument back in 2010. Indeed, abolition of the bar exam requirement could incentivize both bar associations and other groups to create voluntary certification systems that measure lawyer quality much better than current bar exams do (the latter are mostly just tests of memorization).

The comparison with the LSAT actually understates the case for bar exam abolition. I don't have a strong view on whether the LSAT should be retained. But it does serve one useful function that bar exams do not. The LSAT gives law school admissions offices a common metric for evaluating applicants from hundreds of different undergraduate institutions, with widely divergent majors. It's hard to say whether an applicant who graduated with a 3.5 GPA from as a physics major from Podunk University really has comparable credentials to a person who got the same GPA as a political science major from Big State U. But if they both got the same LSAT score, that makes it more likely their abilities are similar.

The LSAT might also make it easier for graduates of lesser-known institutions to compete with those who attended the Ivy League or other similar elite schools. If a Podunk grad got a higher LSAT score than a Harvard grad, that might be a good reason to pick the former over the latter, even if you normally would assign less weight to a Podunk degree than a Harvard one. Absent standardized testing, admissions officers will more often fall back on using school prestige as a proxy for applicant quality. That may be appealing if you're an elite college graduate (like me!). But not so much if you want to provide more opportunity to people who didn't attend such institutions—in some cases simply because they didn't fully mature and start working hard on academics until after high school.

None of this necessarily proves that law schools should retain the LSAT as an admissions requirement. It's possible that admissions offices should instead find better ways to assess applicants' undergraduate credentials, ones that rely less on crude proxies. Even if a standardized test of some kind should be used, the LSAT may not be the right one.

But these kinds of issues do provide potential rationales for the LSAT that do not apply to bar exams. Few if any legal employers use bar exam scores as a proxy for quality. Indeed, most states don't even make the scores available to test takers. If there are employers who believe that passing a memorization test really is a valuable credential, they have lots of other options, including just creating a simpler and easier to take memorization test of their own.

If employers want to ensure that the lawyer they hire reaches some minimal threshold of intellectual ability or conscientiousness, that should be readily evident from their law school grades and other previous academic record. The bar exam adds little, if anything, to these credentials.

And, as I have pointed out before, the bar exam is not a good indicator of the test taker's competence in handling legal issues. Most of the thousands of petty rules tested are ones most lawyers never actually use when they practice law. Indeed, the vast majority of current practicing lawyers—including those at the very pinnacle of the profession—probably couldn't pass their state's bar exam again if they had to take it without studying. If the exam really did test knowledge that is essential for every lawyer to know, that would be a terrible scandal. But virtually all lawyers know it doesn't. Instead, it's primarily a barrier to entry into the profession, keeping out people who are bad at memorization, or unable to take the time and effort to memorize many thousands of petty rules that you can then forget soon after taking the exam.

In sum, I hope more people with join Stephen Carter and myself in advocating abolition of the bar exam. But, if you're still not convinced, perhaps you might consider my "modest proposal" for reform:

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 their failure publicly announced…. 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). That's because, as anyone who has taken a bar exam knows, they test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. 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…. Effectively, bar exams screen out potential lawyers who are bad at memorization or who don't have the time and money to take a bar prep course or spend weeks on exam preparation.

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.