Professor Carter argues that bar exam requirements—and needlessly high passing rates, or “cut scores”–are anti-competitive.
Professor Carter argues that bar exam requirements—and needlessly high passing rates, or “cut scores”–are anti-competitive.
Almost every state requires a bar exam to practice law. Yet Yale Law Professor and author Stephen L. Carter recently called for the end of bar examinations. Many critics agree.
Professor Carter argues that bar exam requirements—and needlessly high passing rates, or “cut scores”–are anti-competitive. “Such rules function as classic barriers to entry, easily manipulated to keep the supply of lawyers low.” Lowering the supply of lawyers has the effect (if not the intent) of keeping attorney salaries elevated. Critics also cite the exclusionary history of the legal profession itself, as well as the disproportionate negative effects of bar exams on underrepresented communities, which one article refers to as a “system of repression.” (The weeks or months of full-time preparation needed to study for the test is just one way the system handicaps applicants.)
So, do bar exams serve any purpose besides limiting the supply of lawyers? One argument is that they test important substantive law. But much of the material covered on bar exams is irrelevant to modern practice–memorized for the test, then quickly forgotten. And the closed-book, rapid-fire format also bears no relationship to the actual practice of law. Another claim is that bar exams evaluate an applicant’s ability to “issue spot”—i.e., to apply legal principles to newly presented fact patterns. Yet most graduates have, by the end of their law school career, been presented with dozens of these kinds of tests. Do they really need one more?
Professor Carter offers a blunt assessment: “Nobody can explain what the bar examination measures—or whether it measures anything at all. The test has never been properly validated. We’ve no clue what it predicts.” If that’s the case, it might be time to abolish the bar exam for good.
