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Abstract
Excerpted From: Nicci Arete, The Bar Exam's Contribution to Systemic Inequalities in Access to Justice Around the World, 30 Washington International Law Journal 324 (March, 2021) (268 Footnotes) (Full Document)
Existing literature does not give adequate attention to if and how the bar exam impacts the legal profession's goals. Bar exam proponents say that the test separates competent candidates from incompetent ones, protecting the public from falling victim to inadequate legal services. But what constitutes a competent attorney? What are the profession's goals? As legal systems become more complex and their impact on people's lives all-encompassing, the ideal of improving access to justice--equitable and fair justice--is increasingly the target for these systems across the globe. Addressing access to justice cannot be done without acknowledging disparate barriers based on race, ethnicities, sex, and class. This article argues that any licensure system for legal professionals should prioritize the impact such a system has on access to justice for marginalized communities. It further argues that the bar exam as currently administered in the United States and similar States abroad does not measure any definition of competence the profession should uphold. This work's goal is not to offer a well-developed plan for reform, but to place a spotlight on where the system is failing and what we can potentially learn from nations around the world. It then considers potential alternatives to license legal professionals and suggests various considerations to weigh in order to design an effective system.
This article begins in Section I by discussing why access to justice is an important consideration when evaluating a legal professional licensure system. The section consequently argues that when designing a legal licensure program, improving access to justice should be a top priority. Section II gives a very brief overview of the bar exam's history to provide context for the analysis that follows. It provides a background of the exam in the United States, then sets the groundwork to understand how the bar exam has evolved and is used in a small sampling of countries. Section III argues that the bar exam is a poor choice when prioritizing the promotion of access to justice and is counterproductive to efforts to improve access to justice. This conclusion is reached through a review of how the bar exam negatively impacts access to the legal profession for individuals from historically marginalized communities, and in turn how lack of diverse representation in the legal profession negatively impacts access to justice in those communities. Section IV discusses licensure alternatives that have been tried in the United States and in the sampling of countries, and similarly evaluates them through an access to justice lens. The article then concludes by calling for the American Bar Association and the American Association of Law Schools to acknowledge the roles each has played in inhibiting access to justice by upholding and promoting archaic licensure systems, including use of the bar exam, in the United States and abroad. This acknowledgement must be the first step in proactive efforts to undo the harm these systems caused and build a new system that embraces and empowers communities equitably.
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The bar exam in the United States evolved from an orally administered judicial test to a hazing mechanism that does not conclusively advance the ABA's stated interest in increasing access to justice. Even arguments advocating for the bar exam are centered around keeping “incompetence” out of the profession, without defining incompetence or considering the harm done by this method of exclusion. The rigid AALS requirements for law schools and the bar exam create a system where alternative forms of education and licensure are shunned. This stubborn adherence to an antiquated system originally built to privilege property owners makes obtaining a legal degree financially unaffordable or impractical for many from underrepresented communities. Taking into consideration the long history of Crit Movements that have shed light on the legal profession's historically discriminatory nature, it does not serve the ABA well to continue pressing for a standardized exam--in the United States or abroad. Especially when standardized exams have been shown to unfairly exclude people from marginalized communities, and when the bar exam has not demonstrated any additional protection from incompetent attorneys. The American Bar Association has taken the first step by reviewing the bar exam and publishing its new Operational Principles, but it must take proactive measures to undo the harm it has sustained for so long both within the United States and elsewhere.
This article shed light on a variety of fair alternatives, including diploma privilege or tiered legal systems where the requirements to practice differ at different levels. It looked at the diploma privilege success in Wisconsin, the legal licensure systems in Kenya, Kyrgyzstan, and the United Kingdom, and legal reform happening in countries such as South Korea. The alternative options are there, available, and able to be studied and adapted. It is time for the American Bar Association and the American Association of Law Schools to address the systematic inequities that the bar exam perpetuates.
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