Lawyer licensing: the elephant in the Bartlett bedroom

Judge Sotomayor is facing criticisms for her decisions (sitting by designation) in Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792 (S.D.N.Y. 2001), and 970 F.Supp. 1094 (S.D.N.Y. 1997), forcing NY to let a learning-impaired applicant sit for the bar exam. Judge Sotomayor said:

There is no insinuation, and I cannot find, that Dr. Bartlett is incapable of performing the functions of a practicing lawyer. * * * Therefore, while it is undoubtedly true that not every person is physically able to be a Yankees first baseman, it is likewise true that it would be grossly unfair to impede whole classes of individuals like plaintiff, with plaintiff's automaticity and reading rate disabilities, from participating in entire classes of customary professions such as the practice of law because they can not read a professional examination like average law school (or other professional school) graduates.

So Judge Sotomayor seemingly gave short-shrift to arguments that the need to read and understand quickly and accurately was an important test of bar admission.

Now I realize that to some this will sound to some like the case of the one-legged Tarzan. But the missing issue here concerns the general usefulness of bar exam.

In my Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004) I criticized lawyer licensing in general, and bar examinations in particular, on the basis that they did not, in fact, protect the public from bad lawyers. The only function of lawyer licensing, I argued, was simply to reduce the supply of lawyers. (I then proposed a modest defense on those grounds – i.e., to encourage lawyers to assist in lawmaking by giving them property rights in their state laws.)

With respect to the bar exam, I said:

Perhaps the most important barrier to entry to law practice in a state is the requirement to take a bar exam. The bar exam usually requires months of study and the risk of embarrassing failure. That states pass a very high percentage of applicants if they take the exam enough times suggests that the bar exam is more a price of admission than an effective screen. On the other hand, the bar exam probably deters some people from attempting to obtain a license. Only four jurisdictions pass fewer than sixty percent of those taking a particular test. These include Louisiana, where the low rate may reflect the state’s idiosyncratic civil law system; the District of Columbia, which is unique in admitting lawyers on motion without prior experience elsewhere; and California, which uses its bar exam to screen graduates of unaccredited California schools. The fourth state is Delaware, whose low passage rate may be particularly significant for present purposes. Since Delaware is the most prominent example of a state where lawyers have played an important role in maintaining the state’s law, this provides some anecdotal evidence of the role of state licensing in encouraging lawyers’ participation in lawmaking.

For other criticisms of bar examinations as a licensing requirement, see Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 ARIZ. ST. L.J. 429, 434 n.16 (2001); Daniel R. Hansen, Note, Do We Need the Bar Examination? A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives, 45 CASE W. RES. L. REV. 1191 (1995); Andrea A. Curcio, A Better Bar: Why and How the Existing Bar Exam Should Change, 81 NEB. L. REV. 363 (2002); Kristin Booth Glen, When and Where We Enter: Rethinking Admission to the Legal Profession, 102 COLUM. L. REV. 1696 (2002).

I’m not an ADA expert so can’t generally critique Sotomayor’s opinions on this issue. But it’s worth noting that at least some of those criticizing her decisions in this case might be sympathetic with the implications of these decisions for lawyer licensing standards in general, and bar exams in particular, which I for one find indefensible as a means of determining fitness to practice law.

Additional point:  I am not arguing that Judge Sotomayor is taking a Friedmanian position on professional licensing.  As I said, this is only an "implication" of her decision.  Perhaps it would be more accurate to call it a possible effect of watering down the purported screening function of the bar exam.  

Comments

[Dave Malley]

"That states pass a very high percentage of applicants if they take the exam enough times suggests that the bar exam is more a price of admission than an effective screen."

Actually bar passage rates for repeat takers go down drastically after the first failure. Did you check your facts?

"the District of Columbia, which is unique in admitting lawyers on motion without prior experience elsewhere"

How is it unique? North Dakota and Minnesota will admit lawyers on motion if they scored well enough on the MBE, with no prior experience. Nebraska will admit lawyers on motion if they "took a comparable bar exam in another state, with no prior experience.

So how is DC unique? I find it fascinating a law review published your article, but then again, it was for the University of Missouri Law Review.

[Larry Ribstein]

1. My (well-recognized) point about multi-takers is that eventually most pass the bar. The fact that their passage rates decline for each taking is neither surprising nor relevant to this point.

2. As of 2004 my information was that DC had the lowest standards for admitting lawyers on motion. Your information shows that Nebraska may be comparable, at least now. But even if DC is merely exceptional but not unique, I would still argue that this explains DC's low pass rate. And even if my explanation for DC is wrong, my main point remains: most states have high bar pass rates.

Do you generally make trivial points in an insulting way? I think you'll find that won't get you very far in law practice. Or are you just very proud about passing a bar exam?

[Mike43]

I found it odd that after the lawsuit, the student failed the test, again.

According to other articles, she did not try the bar exam again and is now Dean of Education at Texas A&M in Kingsville.

I believe that says something about the accuracy of the testing company with respect to the validity of the judges' and the examinees' arguements.