Newsweek: The Bar Exam is Unfair and Undemocratic: A Reply

I would love to be a libertarian like Allen Mendenhall.  I believe that freedom is the most basic of all human rights.  However, in my many years on this earth, I have observed that many human beings take advantage of their fellow human beings.  Consequently, we need government to protect individuals from those who would exploit them.

Mr. Mendenhall has penned an essay for Newsweek entitled The Bar Exam is Unfair and Undemocratic.  He declared, "The bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition."  He noted, "In more recent decades, economist Milton Friedman disparaged occupational licensure as 'another example of governmentally created and supported monopoly on the state level.'”  "The bar exam is one of the most notorious examples of this 'increasing tendency.'”  Among the other reasons he is against the bar exam are 1) it excludes "the lower classes from participation in the legal services market," 2) it "tests the ability to take tests, not the ability to practice law," 3) "the best way to learn the legal profession is through tried experience and practical training," and 4) the bar exam and its accompanying requirements are costly.  He adds, "Today, with services like Amazon, eBay, Uber and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences. Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves."

While I agree with many of Mr. Mendenhall's criticisms of the bar exam, he cannot overcome the main reason for having the bar exam--the protection of the public.  He can call this paternalistic all he wants, but law is a complicated field that requires many years of education under the guidance of experts.  While he may yearn for the halycon days of law apprenticeships, the world and the legal profession have become much more complex than when apprenticeships were the main method of legal training 150 years ago.  He has also failed to tell us who will provide this apprenticeship training; lawyers today do not have time to teach large groups of apprentices.

We license doctors, plumbers, car mechanics, hair stylists, and we do this for the same reason we license lawyers--for the public good.  I do not want to go to a doctor who has had just an apprenticeship.  As I have said before, doctors protect a person's physical health; lawyers protect a person's economic and social health, as well as her rights.

I do not agree with Mr. Mendenhall that consumers can properly evaluate lawyers based on internet information.  Look at a restaurant review on Yelp.  Many consist of both high praise and strong criticism for the same place.  How can I decide which one is right?  Has anybody ever bought a piece of junk on eBay?

As I have written here many times, the bar exam is very flawed, and it needs to be reformed.  The answer is not to eliminate it, as Mr. Mendenhall proposes, but to revise it to make it test what lawyers actually do in practice.

(Scott Fruehwald)

P.S. Theodore Seto has made the following comment on the Tax Prof Blog concerning this story: "Mr. Mendenhall has probably never seen the consequences of really bad lawyering. Let me tell you: it's a nightmare for the client and there is no effective remedy. None. The client loses his or her rights, perhaps several decades of his life, perhaps his or her child, perhaps his or her life's savings. The really bad lawyer is almost always judgment-proof. There is no effective remedy. None."