Monday, May 15, 2017

Reply to Professor Subotnik by Deborah Jones Merritt

Validity is a scientific concept, not a political one. Everyone, whatever their political leanings, should favor a valid bar exam. The current exam does not embody a coherent concept of “minimum competence to practice law.” As a result, it licenses incompetent practitioners—while perhaps also excluding competent ones.

As part of my clinical teaching, I regularly encounter licensed lawyers. Sometimes those lawyers represent opponents; other times, we observe their work while we are waiting in court. Most of those licensed lawyers are excellent professionals, but some are not.

The ones who fall short usually know the law and they almost always know how to argue. But they don’t know how to identify their client’s goals, gather persuasive facts, and negotiate (which is quite different from arguing). Their failures harm clients. In the misdemeanor court, where we work, poor representation means extra days in jail, higher fines, lost employment, and impaired family relationships.

I agree with Professor Subotnik that preparation is the key to professional competence. If our profession develops a realistic definition of lawyering competence, and devises a licensing process to test for that competence, law schools will prepare their graduates for both the test and practice. That will be an important victory for clients.

What does race have to do with it? As I explain in my original essay, we know that the current bar exam has a disproportionate racial impact. An invalid licensing test is bad: it wastes time and fails to protect consumers. But an invalid licensing test with a disproportionate racial impact is even worse: it means that the test wastes time, fails to protect consumers, and disproportionately excludes some racial groups. Three evils are worse than two. And, yes, I believe that an invalid test that disproportionately excludes disadvantaged racial groups is particularly bad.

How would a new bar exam affect pass rates? I don’t know. As Professor Subotnik suggests, that would depend partly on the preparation that law schools provide. Pass rates might rise, fall, or stay about the same. Professor Subotnik, however, errs in assuming that examiners would automatically adhere to the current pass rate. If they did, that would offer strong evidence that state supreme courts are using the exam to restrain trade rather than to assess minimum competence. I assume that, if our profession adopts a new exam, we will conduct one of the recognized psychometric processes for setting an appropriate cut score.  

The key question, as I stress in my original essay, is not pass rates but validity. Our profession desperately needs to define the minimum competence needed to practice law, test for those competencies, and educate students to achieve them.

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