Monday, September 26, 2022

RIP to the LSAT? Let’s Kill the Bar Exam, Too


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.(1) 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?

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.

The ABA called for a written examination for all lawyers back in 1921, and reaffirmed its position in a resolution adopted fifty years later. That 1971 resolution is worth a read. It’s short on data and long on strangely specious assertions. For instance, the examination requirement was said to “encourage law graduates to study subjects not taken in law school” and to force them to satisfy people other than “those who taught them,” a feat that the ABA described, remarkably, as constituting “a valuable experience in preparation in appearing before a completely strange judge.” Nine years later, the Montana Supreme Court explained that without a bar examination, control over entry to the profession would be in the hands of “the wrong people” — law professors, for instance.

None of this is persuasive. If, for example, a student can learn entire subjects during the bar review process, perhaps there’s no need for law school. The profession once understood this, for the tradition of “reading for the bar” while apprenticed to a practicing lawyer is far older than the American Bar Association.

But in 1881, three years after the ABA was founded, the forerunner of the aforementioned wordily named committee announced that there existed “little dispute” that formal schooling turned out better lawyers than “apprenticeship as an attorney’s clerk.” The classroom, the committee explained, best inculcated the valuable habits of “disputing, reading, reasoning, and discoursing.” How did the members know this? It was, wrote the members, “the verdict of the best informed.”(2)

Today’s justifications are little better. In fact, 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.(3) Critics are on the mark when they label the bar exam “a superb hazing ritual” supported only by “arguments that sound selfish, condescending, and protectionist.” Yet many schools try to raise the bar passage rate among their students by essentially teaching to the test.

If none of this is persuasive — if the ABA nevertheless wants to retain the barrier of the bar exam — then there’s this to consider: Although law school grades are the best predictor of success on the bar exam, the LSAT predicts too, albeit weakly. On top of that, there may be a correlation between a school’s average LSAT score and the bar passage rate of its graduates. But if the LSAT is nevertheless bad, the bar examination is worse.

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.

More from Bloomberg Opinion:

• New York State Democrats Flunk an Education Test: Michael R. Bloomberg

• Is There Anything Gen Z Won’t Drink?: Ben Schott

• San Francisco’s School Decision Is Reason to Celebrate: The Editors

(1) According to studies conducted by the Law School Admission Council, the test slightly over-predicts law school grades of minority students.

(2) A number of secondary sources incorrectly date this report 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 persuaded, and even the study’s authors say more research is needed.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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