My attention was recently caught by a headline stating that Washington, the state where I grew up, would no longer require prospective lawyers to pass the bar exam to become practicing attorneys. I did a little research while reading on the subject and it turns out that this decision was motivated by DEI concerns:
In a September presentation to the Washington State Bar Association’s Board of Governors, Washington State Supreme Court Justice Raquel Montoya-Lewis, one of the chairs of the bar’s licensing task force, said the movement came in part “from law students who have raised questions about fairness, not only in the history of the adoption of the bar exam, but also over many decades, when you look at the disproportionate impacts that the bar exam has on applicants of color.”
She added: “They tend to fail the bar exam in disproportionate numbers.”
This may seem immediately shocking, but I see several ways in which this could be a positive development.
It is first worth pointing out that concerns about the disproportionate impact of policies on minorities should not be ignored by libertarians. In fact, it is very common for them to point out that various government regulations disproportionately affect vulnerable communities as reasons to oppose those regulations. Milton Friedman argued that the effects of disemployment of the minimum wage he caused disproportionate harm to the black community – he clearly did not think that this disproportionate impact was morally insignificant.
Second, libertarians often worry about barriers to entry into a profession, especially when they take the form of formal licensing and certification requirements. Libertarians are much more confident than most that in the absence of such regulations, various mechanisms would develop to ensure quality, such as private certification and reputation. See, for example, This David Friedman cited the case of private certification of egg quality in England, driven by market pressure, which produced superior results to government regulation of the same subject in the United States. Libertarians have long argued that legislated certifications invoke “public interest” concerns as a smokescreen for entrenched interests to protect themselves from market competition.
Third, unlike many DEI-type initiatives, this is a rule change that applies equally to everyone. Unlike things like college admissions, where you can essentially get bonus points toward admission (or deducted from admission!) based on your race, this program simply makes additional ways for everyone to become a lawyer available. The architects of this program certainly intended that the outcome of this rule change would be particularly beneficial to minorities, but it’s still 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 Before about how some states have relaxed regulations on the provision of legal services, making more legal services available to people of limited means without any apparent negative effects. And Washington stops short of simply allowing anybody The new law allows for a variety of other ways to qualify to practice law to replace the bar exam, such as “completing a six-month apprenticeship under the supervision and guidance of a qualified attorney and taking three state-approved courses, or completing 12 credits of qualifying skills and 500 hours of work as a legal intern, or completing educational materials and standardized tests under the guidance of a mentoring attorney, in addition to 500 hours of work as a legal intern.” So the doors haven’t been closed—they’ve just been widened a bit. These additional options will allow more people to get their foot in the door. Perhaps because they didn’t pass the traditional bar exam, they’ll be in less demand and will start their careers at a lower level with lower pay—but over time, they’ll be able to build a reputation based on their skills and move up the ranks of the profession, rather than being shut out. This seems to me to be a good thing, at least from a practical point of view. directionalist position.
So I can find reasons to appreciate this policy change from a libertarian perspective. However, I wonder how progressives would interpret it from a progressive perspective. Some progressives may oppose this measure, of course. But some will support it. And among those who support it for the DEI reasons that have been cited, it seems to create the following trilemma:
- The bar exam requirement is not necessary to ensure a high level of competence among lawyers. It can be achieved through other means, such as alternative qualifications and reputations earned through demonstrated competence. This is consistent with my argument so far, but I suspect that this response might also make progressives nervous, because once you allow this, huge swathes of the administrative state suddenly become very vulnerable. So it seems like a high-risk argument for a progressive to make.
- The bar exam is necessary to ensure a high level of competence among lawyers, but the fact that legal services are provided by a competent lawyer is not so important, so we can drop the bar exam requirement. This too seems hardly palatable to progressives, especially since progressives are often very concerned about issues like criminal justice and incarceration.
- The bar exam is necessary to ensure a high level of competence among lawyers, and having competent legal representation is indeed very important. However, ensuring that the demographic composition of practicing lawyers matches what we think is more important than both of these factors combined. That too seems rather difficult to say without raising an eyebrow.
So here’s my counterintuitive take on this issue: The removal of the bar exam requirement, taken in the name of DEI, is actually a policy move that libertarians can view with optimism, but one that should make progressives very nervous. I admit that I didn’t expect to come to this conclusion when I started reading about Washington’s decision, but here we are.
