My attention was recently caught by a headline declaring that Washington, the state in which I grew up, would no longer require aspiring lawyers to pass the bar exam to become a practicing lawyer. I’ve done a little reading on this topic and it turns out this decision was driven by DEI concerns:
During a September presentation to the Washington State Bar Association Board of Directors, Washington State Supreme Court Justice Raquel Montoya-Lewis, one of the chairs of the Bar Licensure Task Force, said the movement stems in part from “law students who are raising issues about equality. , not only in the history of the introduction of the bar exam, but also over many decades, when you look at the disproportionate impact the bar exam has on examinees of color.”
She further noted, “They tend to fail the bar exam in disproportionate numbers.”
This could immediately strike you as a terrible policy change. But I see several ways to see positive developments here.
First, it is worth pointing out that concerns about a disproportionate impact of policies on minorities are not something that libertarians should ignore. In fact, it is very common for libertarians to emphasize how various government regulations disproportionately affect vulnerable communities as a reason to oppose such regulations. Milton Friedman famously argued that the unemployment effects of the minimum wage disproportionately harmed the black community – he clearly did not consider this disproportionate impact morally irrelevant.
Second, libertarians often worry about barriers to entry into a profession, even when they take the form of official licensing and certification requirements. Libertarians are far more confident than most that in the absence of such regulation, a variety of mechanisms would emerge to ensure quality, such as private certification and reputation. See for example this case cited by David Friedman, in which private certification of egg quality due to market pressure in England produced better results than government regulation of the same issue in America. Libertarians have long argued that legally mandated certifications raise concerns about “the public interest” as a smokescreen for entrenched interests to protect themselves from marketplace competition.
Third, unlike many DEI-style initiatives, this is a change in the rules that applies to everyone equally. Unlike cases like college admissions, where you can essentially get bonus points for admission (or deducted from admission!) depending on what race you are, this program simply makes additional resources to qualify as an attorney available to everyone. The architects of this program certainly expect that the outcome of this change in rules will primarily benefit minorities, but that is still not the same as applying different rules to people based on their race or imposing different standards on people because of their race.
I have written for about how some states have relaxed regulations on the provision of legal services, making more legal services available to those with limited resources, without apparent negative consequences. And Washington does not go so far as to simply allow this everyone to appear in court and plead a case. This new law makes it possible to replace the bar exam with a variety of other means of qualifying to practice as a lawyer, such as “completing a six-month internship under the supervision and guidance of a qualified lawyer and completing three state-approved courses, or completing 12 qualifying skill points and 500 hours of work as a legal intern, or completing standardized educational materials and tests under the guidance of a supervising attorney, in addition to 500 hours of work as a legal intern.” So the gates have not been taken down, they have just been opened a little further. These additional options can help more people get their proverbial foot in the door. Perhaps because they didn’t qualify for the traditional bar exam, they will be in less demand and they will start their career at a lower rung, earning less – but as time goes on, they can build a reputation based on of the skills they demonstrate and rise. in the box, instead of being left out at the gate. This seems good to me, at least from a directional attitude.
So I can find reasons to appreciate this policy change from a libertarian perspective. However, I wonder how progressives would interpret this from a progressive perspective. Now, of course, some progressives may oppose this move. But some will support it. And among those who support it for the stated DEI reasons, it seems to create the following trilemma:
- The requirement of the bar exam is not necessary to ensure a high degree of competence among lawyers – this can be achieved through other means, such as alternative qualifications and reputation gained through demonstrated competence. This is consistent with what I have argued so far, but I imagine this response could also make progressives nervous, because once you allow this, large parts of the administrative state suddenly become very vulnerable. So this seems like a high-risk argument for a progressive argument.
- The bar exam is necessary to ensure a high degree of competency among lawyers, but it is not so important that legal services are provided by a competent lawyer. Therefore, we may drop the bar exam requirement. This too seems unpalatable from the progressive mindset, especially considering that progressives are often deeply concerned about issues like criminal justice and incarceration.
- The bar exam is necessary to ensure a high degree of competency among lawyers, and having competent legal representation is very important indeed. However, ensuring that the demographic makeup of practicing lawyers looks the way we think it should is more important than both of these factors combined. This also seems rather difficult to say with a straight face.
So there’s my counterintuitive, sharp take on this issue: eliminating the requirement to pass the bar exam administered in the name of DEI is actually a policy move that libertarians can view optimistically, but that would make progressives very nervous have to make. I admit I didn’t expect to come to that conclusion when I started reading about Washington’s decision, but here we are.