Recently my attention was drawn to an article that said Washington, the state I grew up in, will no longer require aspiring lawyers to pass the bar exam to become practicing attorneys. I did a little reading on the subject and it turns out that this decision was motivated by DEI’s concerns:
During a September presentation before the Washington State Bar Association Board of Governors, Washington Supreme Court Justice Raquel Montoya-Lewis, one of the chairs of the Bar Licensure Task Force, said the organization comes in part “from law students who have raised issues about equality. , not just in the history of bar exam acceptance.” , but also over many decades, when you look at the negative effects the bar exam has had on colorists.”
He continued, “They tend to fail the bar exams in disproportionate numbers.”
Now, this may immediately strike you as a negative change in policy. But I see several ways to see positive progress here.
First, it should be noted that concern about the disproportionate impact of policies on minorities is not something libertarians need to ignore. In fact, it is very common for libertarians to highlight how various government regulations disproportionately affect vulnerable communities as reasons to oppose these regulations. Milton Friedman famously stated that the unemployment effects of the minimum wage have disproportionately harmed the black community – apparently he didn’t think the negative effects were trivial.
Second, libertarians are often concerned about barriers to entry into the profession, including when they take the form of formal licensing and certification requirements. Libertarians believe more than most that in the absence of such laws, various methods of quality assurance can be developed, such as independent certification and reputation. See, for example, this a case cited by David Friedman where private certification of egg quality due to market pressure in England produced superior results to government regulation of the same issue in America. Libertarians have long argued that statutory certificates promote concerns about the “public good” as a smokescreen for vested interests to protect themselves from market competition.
Third, unlike most DEI-style programs, this is a change in rules that applies equally to everyone. Unlike situations like college admissions, where you can get bonus points for admission (or be penalized!) depending on your race, this program simply makes more ways to qualify as a lawyer available to everyone. The drafters of this program certainly expect the result of this change in laws to benefit especially minorities, but that is no longer the same as applying different laws to people based on their race or holding them to different standards because of their race.
I wrote before about how some states have deregulated the provision of legal services, resulting in more legal services being available to poor people without any obvious negative consequences. And Washington doesn’t go so far as to simply agree or anyone appear in court and plead guilty. This new law allows the bar exam to be replaced by various other criteria to qualify to practice law, such as “completing six months of training under the supervision and guidance of a qualified attorney and completing three state-approved courses, or completing 12 qualifying skills credits and 500 hours of work as a legal intern, or completion of educational materials and standardized tests under the supervision of a legal advisor, in addition to 500 hours of work as a legal intern.” So the gates haven’t been thrown down yet – they’ve just opened wider. These additional options will allow more people to get their proverbial foot in the door. Perhaps because they didn’t qualify for the traditional bar exam, they’ll be in low demand and start their careers at low-income levels – but over time they can make a name for themselves based on the ability they demonstrate and move up. up at work, rather than locked out of the gate. This seems good to me, at least from a directory stop.
So I can find reasons to like this policy change from a liberal perspective. However, I wonder how developers can interpret it from a progressive perspective. Now, some progressives may oppose this move, of course. But others will support it. And among those who support it on the DEI grounds cited, it seems to create the following trilemma:
- A bar exam requirement is not necessary to ensure a high level of competence among lawyers – this can be achieved by other means such as other qualifications and the reputation gained through demonstrated competence. This is consistent with what I have argued so far, but I think this answer may also make progressives nervous, because once you allow this, large parts of the administrative state become more vulnerable. So this seems like a great argument at risk for a progressive to make.
- The bar exam is necessary to ensure a high level of competence among lawyers, but having legal services provided by a competent lawyer is less important, so we can waive the bar exam requirement. This, too, seems counterintuitive to progressive thought, especially since progressives tend to be more concerned with 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 very important. However, ensuring that the composition of the population of practicing lawyers looks the way we think it should is more important than both of these factors combined. This, too, seems very difficult to say with a straight face.
So there’s my hotly contested take on the issue – the removal of the requirement to pass the bar exam, taken on behalf of the DEI, is actually a policy move that libertarians can look at with hope but that should make progressives very nervous. I admit, I didn’t expect to reach that conclusion when I first read about Washington’s decision, but here it is.
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