Book Review of Shaping the Bar: The Future of Attorney Licensing

In Shaping the Bar: The Future of Attorney Licensing, Professor Joan Howarth issues a clarion call to the academy, the legal community, and the judiciary to reform the way we license lawyers in the United States. In this book Howarth identifies the current crisis in law licensing, the history of racism that created this crisis, and the tools available to address it. Shaping the Bar challenges our entrenched notions of professional identity, and it forces us to confront vulnerabilities in attorney self-regulation. It does so in a manner that will stir even those not immersed in the current debate about law licensing. What is the crisis in law licensing? Howarth answers that question and explains that the current crisis is twofold. First, the attorney licensing system fails at its stated purpose of public protection because it does not assess the skills and abilities new lawyers need to competently represent clients. Second, the attorney licensing system unjustifiably excludes people of color and those without financial resources. Throughout the book, Howarth connects the law licensing process to legal education, highlighting the symbiotic relationship between the two, and noting that as legal educators, we must accept responsibility for our part in creating, and hopefully now dismantling,this system. In this review, we summarize some of the key issues Howarth raises about the problems with the current system of attorney licensure and the way we educate law students. We briefly expand upon some of her ideas and analyze the benefits and drawbacks of her suggestions for change. We do so without referencing the extensive sources she offers in support of her arguments. We use her work to provide a concise yet informative evolution of the systemic shortcomings in bar admission for those not conversant with the current crisis. Part I juxtaposes the purpose and reality of public protection through bar exams. Part II rolls back a curtain to much that is unknown and unexamined about assessing minimum competency for the practice of law. Part III explores exclusionary practices and outcomes in character and fitness assessments, and discusses Professor Howarth’s solutions to improve the process. In Part IV, we recount Howarth’s innovative, and eminently workable, suggestions to improve the current system of attorney licensure. It is here, specifically, that Howarth’s creativity and practicality meet to make this book a road map for those seeking to implement a better process for bar admission, one that is both valid and fair

Outsourcing Self-Regulation

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at the expense of those seeking entry. The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. The manner in which state courts have fostered privatized bar admission brings into question whether the delegation of judicial power is consistent with Constitutional prerogatives. This Article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing an exclusive judicial power that is essential to the goals of self-regulation. This Article ultimately questions whether the legal profession has surrendered, or will soon lose, the ability to regulate itself. The Article concludes with multiple recommendations to reverse the directional flow of power in attorney licensure in a manner that will yield more transparency and public accountability

Fix or Fox: Where Do We Go from Here?

Recently the National Conference of Bar Examiners (“NCBE”) announced that it will make sample questions from its proposed NextGen Bar Exam publicly available. NCBE is the entity that creates and sells all the questions used on the Uniform Bar Exam adopted in Kansas, Missouri, and thirty-six other states. In theory, the NextGen Exam is being developed in response to mounting critique that the bar exam is not a true measure of competence to practice law and claims that the exam disadvantages applicants based on socioeconomic status and race. But is the NextGen prototype a fix or a fox in the henhouse

Building a Better Bar Exam

In the wake of declining bar passage numbers and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, thirty-six U.S. jurisdictions have adopted the UBE. I predict that in a few years’ time, the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is: “What can be done to make sure that the UBE does less harm than good?” This Article will, in four parts, examine the meteoric rise and spread of the UBE and the potential costs of its quick adoption. Part I will survey the gradual move away from state law exams to the jurisdictionally neutral UBE. Part II will identify correlations between recent changes to the multistate exams and a stark national decline in bar passage rates. Part III will address the limitations of the UBE, including the misleading promise of score portability and the consequences of forum shopping. Part IV will propose additional measures that can coexist with the UBE to counterbalance its limitations to make a better bar exam for law graduates and the clients they will serve

An Epic Fail

All at once, the U.S. found itself embattled with the threat of COVID-19, the new normal of social distancing, and the perennial scourge of racial injustice. While simultaneously battling those ills, the class of 2020 law graduates found themselves also contending with inflexible bar licensing policies that placed at risk their health, safety, and careers. During a global health pandemic, bar licensing authorities made the bar exam a moving target riddled with uncertainty and last-minute cancellations. This costly and unsettling uncertainty surrounding the bar exam administration was unnecessary because multiple alternatives were available to safely license new attorneys. A ball was dropped, and bar examiners at the state and national levels failed epically at an opportunity to be adaptive, decisive, and transparent, to the detriment of a class new lawyers and the public they will serve. The dogged insistence on status quo that led to the bar exam chaos of 2020, has placed the method and purpose of bar examination under national scrutiny. This Article offers a critical analysis of the systemic failure of bar licensure authorities to respond adaptively to crisis; explores alternative processes to measure minimal competency; and offers insight about the institutional mindset that has dominated our perception of the bar exam. An entire class of bar takers was held captive to conventional thinking at a time that called for compassion and innovation. Any failures on this bar exam are ours, not theirs

Outsourcing Self-Regulation

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private corporate interest. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense of those seeking entry.The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. The manner in which state courts have fostered privatized bar admission brings into question whether the delegation of judicial power is consistent with Constitutional prerogatives. This article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing an exclusive judicial power that is essential to the goals of self-regulation. This article ultimately questions whether the legal profession has surrendered, or will soon lose, the ability to regulate itself. The article concludes with multiple recommendations to reverse the directional flow of power in attorney licensure in a manner that will yield more transparency and public accountability

Race, Rules, and Disregarded Reality

Exploring issues of racial bias and social injustice in the law school classroom is a modern imperative. Yet, important conversations about systemic inequality in the law and legal profession are too often dissociated from core doctrinal courses and woodenly siloed to the periphery of the curriculum. This dissociation creates a paradigm of irrelevancy-by-omission that disregards the realities of the lived experiences of our students and the clients they will ultimately serve. Using Evidence as a launch pad, Professor Deborah Merritt has paved a pathway to incorporate these disregarded realities in doctrinal teaching. This important pathway leads to safe spaces necessary for both faculty and students to explore the historical context of racial subordination in law. Professor Merritt’s disruptive pedagogy upends the casebook method of law school teaching. Her groundbreaking “uncasebook” has prompted deeper thinking about the meaning, purpose, and role of law. This Article serves dual aims. First, it lauds Professor Merritt’s career-long commitment to the goals of equity and inclusion in law teaching and the legal profession. Second, it complements the existing discourse on the role of race and the record of racial disparity in the Rules of Evidence by adding the personal narrative of an outgroup insider. We can do more to promote equity and inclusion in the law school classroom. This Article offers a revealing example of why we must

Diploma Privilege and the Constitution

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic. State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin\u27s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues. This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state\u27s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic

The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action

The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Among other challenges, jurisdictions are unlikely to be able to administer the July 2020 bar exam in the usual manner. It is essential, however, to continue licensing new lawyers. Those lawyers are necessary to meet current needs in the legal system. Equally important, the demand for legal services will skyrocket during and after this pandemic. We cannot close doors to the profession at a time when client demand will reach an all-time high.In this brief policy paper, we outline six licensing options for jurisdictions to consider for the Class of 2020. Circumstances will vary from jurisdiction to jurisdiction, but we hope that these options will help courts and regulators make this complex decision. These are unprecedented times: We must work together to ensure we do not leave the talented members of Class of 2020 on the sidelines when we need every qualified professional on the field to keep our justice system moving