Recently, I saw a headline that said that in Washington state, where I grew up, you will no longer need to pass the bar exam to become a lawyer. read In this case, it turns out the decision was born out of DEI concerns.
In a September presentation to the Washington State Bar Association Board of Trustees, Washington State Supreme Court Justice Raquel Montoya Lewis, one of the chairs of the Bar Certification Task Force, said the movement “was born out of law students who have been raising questions about fairness for decades, given not only the history of the bar exam’s implementation but also its disproportionate impact on test-takers of color.”
She further noted that “they tend to fail the bar exam at a disproportionately high rate.”
Now, this may seem like a terrible policy shift right off the bat, but I think there are some positive developments here.
First, it is worth pointing out that concerns about policies having a disproportionate impact on minorities are not something that libertarians should ignore. Indeed, it is quite common for libertarians to highlight how various government regulations disproportionately affect vulnerable communities as a reason to oppose such regulations. Milton Friedman The famous one is, minimum wage It caused disproportionate harm to black communities, but he clearly did not consider this disproportionate impact to be morally irrelevant.
Second, libertarians are often concerned about barriers to entry into professions, especially public requirements for licensure or certification. Libertarians are more confident than most that in the absence of such regulations, different mechanisms for ensuring quality, such as private qualifications or reputation, will develop. For example, this In one case cited by David Friedman, market pressures led private certification of egg quality in the UK to produce better results than government regulation of the same issue in the US. Libertarians have long argued that legally mandated certification raises concerns about the “public interest” and is a smokescreen used by vested interests to protect themselves from market competition.
Third, unlike many DEI-style initiatives, this is a rule change that applies equally to everyone. Unlike college admissions, where you can get bonus points on admission (or lose points on admission!) depending on your race, this program simply gives everyone an additional avenue to become a lawyer. While the program’s architects certainly expect that the results of this rule change will benefit minorities in particular, that’s not the same as applying different rules to people based on their race, or holding them to different standards because of their race.
I wrote in front Several states have relaxed regulations on the provision of legal services, thereby increasing access to legal services for those with limited means, without any apparent adverse effects. And Washington has Anyone Instead of taking the bar exam, you can get qualified to appear in court and argue cases by a variety of other means, such as completing a six-month apprenticeship and three state-certified courses under the supervision and guidance of a licensed lawyer, or completing 12 qualifying skill units and a 500-hour legal internship, or completing a 500-hour legal internship plus standardized educational materials and tests under the guidance of a supervising lawyer. So the door isn’t closed, it’s just opened a little wider. These additional options allow more people to get through the door, so to speak. Perhaps because you’re not qualified by a traditional bar exam, you’re in less demand, you’ll start at a lower level, and you’ll earn less, but over time you’ll build a reputation based on the skills you demonstrate and be promoted in the profession instead of being turned away. This seems like a good thing to me. Directionalist stance.
So, I can find reasons to welcome this policy change from a libertarian perspective. But I wonder how progressives would interpret this from a progressive perspective. Of course, some progressives might oppose the move. But there will be those who support it. And among those who support it for the DEI reasons cited, a three-fold conundrum seems to arise:
- A bar exam requirement is not necessary to ensure a high level of competence among lawyers. This can be achieved by other means, such as alternative qualifications or reputation gained through demonstrated ability. This is consistent with what I have been arguing, but I also think this response may unsettle progressives, because if we allow this, large parts of the administrative state suddenly become very vulnerable. So this seems like a very risky argument for progressives.
- Although the bar exam is necessary to ensure a high level of competence among lawyers, the provision of legal services by competent lawyers is not that important, so the bar exam requirement could be removed. This also seems unacceptable to a progressive perspective, given that progressives are very concerned about issues such as criminal justice and incarceration.
- The bar exam is necessary to ensure a high level of competence among lawyers, and having competent lawyers is certainly very important, but making sure the demographics of lawyers are what we think they are is more important than the combination of those two factors. Again, this seems pretty hard to say with a straight face.
Here’s my hotly contested counterintuitive opinion on this issue: The repeal of the bar exam requirement in the name of DEI is actually a policy move that libertarians should be optimistic about, but that should make progressives very uneasy. I never expected to reach that conclusion when I started reading about the Washington decision, but here it is.
