by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef explains for Forbes readers why the bar exam is not necessarily the best tool for determining prospective lawyers’ competence.
Instead of ensuring that all legal practitioners are competent, the bar exam (and its long prelude, law school) merely creates an artificial barrier that keeps many people from competing in the market for legal services.
That has two main consequences. First, some people who could earn a pretty good living as attorneys are prevented from doing so; they have to look for work in other fields. Second, some people (quite a large number in fact) are unable to afford legal help when they need it because few of those who do overcome the barrier to entry can accept cases that won’t pay them enough to cover their heavy costs.
But back to the competency question.
Whenever special interest groups seek to stifle competition so those in the group can earn more, they try to justify their restrictions as consumer protection measures. That is exactly what Erica Moeser, president of the National Conference of Bar Examiners told New York Times writer Elizabeth Olson for her March 19 article “Bar Exam, the Standard to Become a Lawyer, Comes Under Fire.” Moeser declared that the bar exam “is a basic test of fundamentals that has no justification other than protecting the consumer.”
Not so, responded law professor and former dean Kristin Booth Glen, who observed that the bar exam “only shores up the guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.” She’s right. In truth, that was the original reason why the legal profession began pushing for high barriers to entry back in the 1920s. The rhetoric was about “raising standards” but the motive was to limit competition in the field.