Do state bar licensing authorities distrust law schools?

It’s late July, so it’s time for another round of op-eds and blog posts about the bar exam—it doesn’t test the things that are required of legal practice, the cut score is unjustifiably high, it’s a costly and burdensome process for law students, etc.

Granted, these arguments have may varying degrees of truth, but, as any reader of this blog is no doubt familiar, I am pretty skeptical of these claims—and I say that as one who, as a law professor, in my own self-interest, would subjectively like to see an easier bar exam for law school graduates. But graduates have had persistently low scores for coming up on half a decade, mostly attributable to the decline in admissions practices at many law schools. And I think we too quickly conflate a lot of arguments about the bar exam.

But I’ve long had an uncomfortable thought about the bar exam as I’ve read the claims of legal educators (often law school deans) over the last several years. Law schools complain that their students have invested three years of their lives, plus tuition, plus the effort to pass the bar exam, and many fail—only, of course, to retake at still more invested time and cost before ultimately passing (or maybe never passing). Isn’t it unfair to these graduates?

Maybe, of course, depending on the “right” cut score in a jurisdiction. But… what about the opposite perspective? That is, are law schools graduating students who are not qualified to engage in the practice of law?

That’s a very cold question to ask. The ABA’s (new, slightly higher) standard for accrediting law schools is that at least 75% of its graduates should pass the bar exam within two years—it’s long had an outcome-oriented element to accrediting law schools. So the ABA admits that law schools can graduate a significant cohort who are never able to pass the bar.

Now, getting 100% first-time bar passage rate is pretty challenging—there are usually at least a couple of students at even the most elite law schools in even the biggest boom-times of legal education who’d fail the bar exam on the first attempt, for lack of effort or personal circumstances even if not for lack of ability.

But nevertheless, why do state bar licensing authorities—which also have a role in the accreditation of schools in the state (even if they mostly outsource it to the ABA)—require graduates of in-state law schools to take the bar exam? Does it reflect a distrust of those in-state law schools?

There’s only one state now with “diploma privilege,” Wisconsin. That is, graduates of law schools at the University of Wisconsin or Marquette University are automatically admitted to the bar. Many more states had diploma privilege several decades ago, but those have gradually been replaced until just Wisconsin remains.

Some complain about Wisconsin’s diploma privilege in the vein of, “Does it seem like Wisconsin’s law schools are really teaching sufficiently Wisconsin-centric law to preclude the need to take the bar exam?” But I think that mistakes what may be a driving force in these discussions (and the barrier that’s happened in jurisdictions considering reinstating diploma privilege).

In short, the bar exam is essentially a licensing authority’s way of verifying that the law schools are graduating qualified practitioners of law. Yes, the bar exam may be an imperfect way of doing it. But given that the bar exam highly correlates with law school grade point average, one can’t say it’s particularly irrelevant (unless law professors make the same claim about law school grades!).

Now imagine you’re the bar licensing authority in Wisconsin. You look at what’s happening at Wisconsin and at Marquette. And you’re satisfied—these two schools admit a good batch of students each year; their academic dismissal and transfer acceptance rules are sound; they graduate qualified students each year. Yes, maybe a few would fail the bar exam in Wisconsin each year—but we know there can be some randomness, or some cost of retaking for candidates who’ll ultimately pass, and the like. But the licensing authority trusts the law schools in the state. The law schools are consistently graduating students who, on the whole, are capable of practicing law in the state.

That’s a really good relationship between the state bar licensing authority and the law schools in the state, no?

So… what does that tell us about the other 49 states and the District of Columbia? (Although Alaska doesn’t have a law school….)

It may tell us that state bar licensing authorities do not have the same faith in these in-state law schools. That is, they believe law schools are not consistently graduating students capable of practicing law in the state. And that’s a cold truth for law schools to consider.

Of course, state bar licensing authorities may also have idiosyncratic reasons for preserving the bar exam (e.g., “We took the bar, so kids these days have to take the bar!”). And it might also be the case that many law schools or bar licensing authorities haven’t seriously considered trying to reinstate diploma privilege.

But I wonder about three persuasive reasons—which should cover the ideological spectrum!—for law schools in a few jurisdictions to consider pressing for diploma privilege. I look at the upper Midwest, the Great Plains, and northern New England in particular.

First, it encourages greater diversity in the legal profession. These arguments are consistently raised in California among other places—law schools are simply more diverse than the legal profession as a whole (due largely in recent years to changes in demographics), and reducing a barrier to the bar would immediately lift the diversity of the legal profession. (It would also encourage increased residence in state of those graduates, as the third point below indicates.)

Second, it reduces state regulatory occupational licensing authority burdens. We’ve seen a small revolution in states from Arizona to Pennsylvania to try to reduce the amount of occupational licensing burdens, from reducing the kinds of positions that need licensing to allowing interstate recognition of occupational licenses. Allowing a reduction in the burdens of occupational licensing would be consistent with that trend—even if it’s of a long-regulated profession like law.

Third, in these jurisdictions I named, states can offer a competitive advantage against other states where demographics favor more rapid population growth. Declining birth rates, aging populations, migration patterns, whatever it may be—there is simply less growth in the upper Midwest, Great Plains, and northern New England than other areas of the country. By offering in-state graduates the guarantee of bar admission, there is a greater incentive for these younger attorneys to stay in the state and practice locally rather than migrate elsewhere.

I also mention these jurisdictions because many have just one or two law schools, similar to Wisconsin, and therefore relatively easy for the schools to act together (or as one institution!) to meet the standards that would satisfy the state bar licensing authority.

The tradeoff for law schools? All the law schools in the state have to admit and graduate students who consistently appear able to pass the bar exam and practice law—a particularly high first-time pass rate and a near-100% ultimate pass rate.

As law schools for a few years have reduced admissions standards to preserve revenue, this is a particularly challenging prospect. State bar licensing authorities often appear increasingly distrustful of law school behavior, just as law schools often appear increasingly distrustful of state bar licensing authority behavior.

But developing a local community of trust between the state bar and in-state law schools could redound to significant benefits for all parties in short order. Whether that claim can be made persuasively, and whether law schools could alter their behavior in the short term for a potential long-term improvement of both their graduates’ positions and their state bar’s position, remains to be seen.