In an article by Slate.com, Pilar Escontrias proclaims “It’s time to see the bar exam for what it truly is: the relic of a racist club.” The bar exam in the United States has a “sordid history as one of the many racialized gatekeeping mechanisms into the practice of law. The legal profession was a virtually unregulated, open field of practice for generations until immigrants, Black, and Jewish people started applying for bar admission in the late 19th century”. Suddenly the bar exam emerged. One reason for the bar exam was to act as a gatekeeper against minorities.

In the article, “No African-American Lawyers Allowed: The Inefficient Racism of the Aba’s Accreditation of Law Schools“, George Shepherd further explains that the American Bar Association’s system for accrediting law schools excluded most African-Americans from the legal profession. “By 1840, almost any white male could practice law, with little or no educational requirements and a perfunctory, easily-passed bar exam. Abraham Lincoln became a lawyer without attending college or law school, and was required to pass only a 10- minute oral bar exam… Until 1928, anyone who could pay the tuition could study at any law school, including Harvard and Yale”. However, in the late 1920s admission standards began to change in an effort to restrict admission of minorities, amongst other concerns.

Shepherd notes that “it was no coincidence that bar pass rates plummeted and mandatory accreditation began at exactly the time when minorities were finally overcoming overt discrimination and becoming lawyers.” In response, to the historical racist roots of admissions standards, Shepherd proposes that eliminating accreditation of law schools and the bar exam to integrate the profession. Shepherd provides alternative methods of ensuring competencies, like strengthening discipline or releasing bar exam marks but letting everyone “pass”.

Despite the racist roots of the bar exam and weak evidence of bar exam validity, I do not believe that all licensing or testing requirements should be discarded. In my opinion, a better approach would be to rethink the licensing process and to innovate it. Legal thinker Jordan Furlong remarks on Twitter that “we licence lawyers too early. They pay the price.”

In a recent Law & Leadership Conference by Brigham Young University Law School (BYU), BYU Law discussed paths to bar licensure in its 2021 conference. See here for access to their recordings.

At the conference, Professor Deborah Meritt remarked that “The current bar exam does not rest on appropriate evidence. As a result, it is not protecting clients as well as it should. It has well-known racially disproportionate impact”. Some suggestions for improvement at the BYU Law conference included:

  • requiring clinical experience before licensing lawyers
  • requiring coursework
  • considering diploma-based licenses
  • revising written exams to eliminate essay questions and instead showing performance tests
  • using 100 multiple choice questions instead of 200 for an open book exam

In addition to rethinking the bar exam, some States in the U.S. have been considering loosening regulatory restrictions. Utah has a regulatory sandbox. Similarly, California’s Closing the Justice Gap Working Group is considering a “regulatory sandbox”. The FCA has defined a regulatory sandbox as “a ‘safe space’ in which businesses can test innovative products, services, business models and delivery mechanisms without immediately incurring all the normal regulatory consequences of engaging in the activity in question”.

As new legal tech products enter the market, we will be forced to consider who and what can dispense legal advice and services. This will provide a great opportunity to reimagine our licensing system.

(Views are my own and do not represent the views of any organization. This article was originally posted on Slaw.ca. heatherdouglaslaw.com)