The recommendation to scrap the admissions test requirement comes amid cascading accusations that reliance on the law school admissions test harms minority applicants. The proposal is hotly opposed by many friends of diversity.(1) Some find it stigmatizing to be told they don’t do as well on the test as white applicants. But given that the case against the test appears to have convinced the ABA’s highly appointed Legal Education and Bar Admissions Section Council, let’s assume, for the sake of argument, that the LSAT does indeed represent an unfair barrier to entry into the legal field. occupation.
Why doesn’t the same argument apply to the bar exam?
Except in Wisconsin, no one can practice law without passing the bar exam. Some states – California being the most prominent – even require attorneys licensed elsewhere to pass an exam if they want to set up shop in the jurisdiction. Such rules function like classic barriers to entry, easily manipulated to limit the supply of lawyers.
Additionally, the ABA admits that minority bar exam pass rates continue to lag. A 2021 study found that an increasing percentage of non-white students at a law school correlates with a reduction in the school’s bar pass rate. Hmmm. If the LSAT is a problem because of its supposed effect on diversity, perhaps the bar exam should join it in the trash. Or the exam could be optional, leaving employers to decide if they want to require it.
Even a minority barrier to entry might be justified if we could highlight the vital public purpose the bar exam serves. It’s harder than you think.
The ABA called for a written exam for all attorneys in 1921 and reaffirmed its position in a resolution passed fifty years later. This 1971 resolution is worth reading. It lacks data and contains many strangely specious claims. For example, the requirement of an exam was supposed to “encourage law graduates to study subjects not taken in law school” and force them to satisfy people other than “those who taught them”, a feat that the ABA described, remarkably, as “a valuable experience in preparing to appear before a completely strange judge. Nine years later, the Montana Supreme Court explained that without a bar exam, controlling access to the profession would be in the hands of the “wrong people” – law professors, for example.
None of this is convincing. If, for example, a student can learn entire subjects during the bar exam process, there may not be a need for law school. The profession once understood this, because the tradition of “reading for the bar” while apprenticed to a practicing attorney is far older than the American Bar Association.
But in 1881, three years after the ABA was founded, the forerunner of the aforementioned verbosely named committee announced that there was “little dispute” that formal schooling produced better advocates than “learning as as a lawyer’s clerk”. The classroom, the committee explained, best inculcated the valuable habits of “arguing, reading, reasoning, and discoursing.” How did the members know this? It was, the members wrote, “the verdict of the best informed.”(2)
Today’s justifications are not much better. In fact, no one can explain what the bar exam measures – or if it measures anything. The test has never been properly validated. We have no idea what he predicts.(3) Critics are on the right track when they call the bar exam a “superb hazing ritual” supported only by “arguments that seem selfish, condescending and protectionists”. Yet, many schools attempt to increase the pass rate among their students by essentially teaching the test.
If none of this is convincing – if the ABA nevertheless wants to retain the barrier of the bar exam – then there is this to consider: although law school grades are the best predictor of success at the bar exam, the LSAT also predicts, albeit weakly. In addition to this, there may be a correlation between a school’s average LSAT score and the bar pass rate of its graduates. But if the LSAT is still bad, the bar exam is worse.
Do not mistake yourself. I am not against standardized tests in all circumstances. For example, I would support a plan under which the bar authorities follow the medical profession by requiring a certification process before members can present themselves as specialists in particular fields. But there is no compelling justification for forcing graduates of accredited law schools to take another step before they are allowed to practice their profession.
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(1) According to studies conducted by the Law School Admission Council, the test slightly overestimates the law school grades of minority students.
(2) A number of secondary sources incorrectly date this report to 1879.
(3) Some work suggests a weak correlation between passing the exam with a low score and facing bar discipline at some point in one’s career. But not everyone is convinced, and even the study authors say more research is needed.
This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A law professor at Yale University, he is the author, most recently, of “Invisible: the story of the black lawyer who shot down America’s most powerful gangster”.
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