Welcome news last week out of Oregon, where the state Supreme Court unanimously “approved in concept” two alternative pathways to lawyer licensure that don’t involve writing the bar exam. The potential new routes to bar admission were proposed in the July 2021 report of the Oregon State Board of Bar Examiners’ Alternatives to the Bar Exam Task Force. The state Supreme Court asked the Board to develop an implementation plan for the alternatives in six months’ time.
The proposed new routes are straightforward. Licensure candidates who choose the pre-graduation “Oregon Experiential Pathway” would spend the last two years of law school carrying out clinical and simulation-based coursework, while those who choose the post-graduation “Supervised Practice Pathway” would spend 1,000 to 1,500 hours working under the supervision of an experienced attorney. The bar exam would still be available for any candidate who preferred it.
The state Supreme Court invited public input on the report last summer, and despite not remotely being an Oregon lawyer, I submitted my strong endorsement of the alternatives (aside from some real reservations about the degree to which the SPP replicated many of the downsides of the Canadian articling requirement). If you’re interested in those thoughts, I left a slightly modified version as a comment on a blog post by Willamette Law School Dean Brian Gallini, a member of the task force whose school is already hiring new faculty to offer the Experiential Pathway.
Why do I support these new routes to licensure? That is, other than the fact that the bar exam is a gruelling ordeal with a racist and exclusionary history that has never been validated and now endangers the health of licensure candidates by testing indoors in-person in a pandemic and, by the way, doesn’t actually assess a candidate’s readiness to practise law? Besides those minor irritants?
I support these new measures because they give a licensure candidate the opportunity to actually engage in the work of a lawyer — to “practise the practice of law,” if you will. They diversify and enhance the path towards lawyer licensure by adding “supervised experience” to the existing elements of “knowledge of the law” and “understanding of professional responsibility.” They deepen the candidate’s competence and enhance their self-confidence. Would you prefer to hire a lawyer qualified by a written exam, or a lawyer who acquired the basic skills of lawyering by direct supervised engagement in real or simulated practice?
If Oregon does indeed introduce these two new pathways, it could start a chain reaction in other states. Wisconsin already waives the bar exam for graduates of accredited in-state law schools, and New Hampshire helped inspire Oregon with the Daniel Webster Scholar Honors Program at the Franklin Pierce School of Law. But Oregon’s task force report has been cited by the State Bar of California’s Blue Ribbon Commission on the Future of the Bar Exam, which heard testimony from the task force chair late last year. New York has reported similar reflections. Either of these states adopting bar exam alternatives would amplify the impact of Oregon’s move many times over; if they both did so, the game would truly change for good.
All of this is undeniably positive. But still, one aspect of this story has made a bad impression on me, and has brought to the surface many of my long-simmering frustrations with the legal profession.
A recurring theme of the Oregon Task Force Report, as well as task force members’ submissions to the Supreme Court and other public comments, is that these two alternatives are in no way “less rigorous” than the bar exam. Apparently, some lawyers and regulators need reassurance that two full years of practical law school instruction, clinical work and externships (plus a capstone project), or 1,000 hours (equal to 25 40-hour weeks, or more than six full months) of supervised work for actual law firm clients, would be just as tough and stringent an assessment as 12 hours of answering written exam questions. It needs to be proven that this would not constitute “lowering the bar” for licensing.
This maddens me. It’s not just that the proposed Oregon pathways are valid means of establishing a licensure candidate’s fitness to be a lawyer. It’s that this is so obviously the case. Does it make sense that practical instruction and supervised experience are equal if not better tests of competence than passing a written exam? Of course it does. If your house was being engulfed in flames, would you want the responding firefighters to have had practice putting out conflagrations, or just have written an exam about fire?
But the bar exam has one nearly insurmountable advantage over every other type of licensing method: It was here first. For many lawyers, and for most legal regulators, that’s apparently the only criterion that matters. I sometimes think that if the existing licensure test for lawyers was to bang two rocks together until they produced a spark, defenders would line up to justify this remarkable feat of skill and insist upon its irreplaceability.
And defenders are not hard to find. The National Conference of Bar Examiners, which creates and administers the bar exam, created a “Testing Task Force” to come up with a “next generation” exam, which is progress of a sort. But when the chair of the task force publicly states that “the bar exam is a valid measure and a highly reliable measure” of competence, and that she is “1,000% convinced” that the American attorney licensing process is working as it should, then I become deeply disheartened.
Because this isn’t just about lawyer licensing in the United States. “The way we’ve always done things” has an iron grip on this profession. I mean, it took a pandemic that killed millions of people worldwide before law firms would even contemplate letting their lawyers work from home. And that’s almost the only real shift away from the professional status quo in the law I can point to.
- We still structure multi-million-dollar global legal services enterprises as partnerships.
- We still insist that lawyers can maintain their competence by showing up at a handful of dull lectures every year.
- We still price most of our services by counting out six minutes of our time and assigning a dollar value to 10 of those segments.
- We still don’t care that people who can’t afford our services are unable to get legal help from anybody else because we’ve prohibited it.
- We still require aspiring lawyers to obtain expensive three-year degrees from schools that openly reject any input from the profession about the content of their law programs.
None of these things is inherently sensible or widely beneficial. We do these things and defend these things because we’ve always done so. We shackle ourselves to yesterday because we lack the courage to acknowledge the failures of today or the vision to imagine the improvements of tomorrow. (And let’s not kid ourselves — “the way we’ve always done things” has been very comfortable, convenient, and remunerative for us.) We’ve made an idol of the status quo. Habit became ritual, and ritual became sacred, beyond reproach, “1,000% certain.”
This has got to change. It has to. We can’t keep going like this — venerating precedent, surrendering to inertia without a fight, resisting new things because they’re new and rejecting different ideas because they’re different. The cold reality of the outside world is gaining on us fast, coming at us like a guided missile. We’re running out of time.
And we hold the solution in our hands — or more accurately, in our heads. All we need to do is engage in that classic tactic of lawyer reasoning: Reverse the burden of proof.
Instead of defending the status quo in the law, be skeptical of it. Whatever current practice, procedure, or habit in the legal profession you encounter, automatically assume it’s outmoded or deficient in some way. Don’t give incumbency so much credit — in most cases, “the way we’ve always done things” is just an accident of history or a self-serving relic of an obsolete time, and nothing more.
I would go so far as to suggest that an existing practice in the law should be challenged simply because it’s the way we’ve always done things. What, do we really think that we’re so fortunate as to be the generation that’s arrived at the perfect state of our legal institutions, the ultimate fulfillment of their evolution, “the end of history” in the law? We’re not that foolish, are we? And if not — if we know that our current state of affairs is still flawed, incomplete, deficient in many ways — then why, why, why do we leap to its defence every time?
The past is dead, and we don’t have to be its prisoners any longer. We were the ones who chained ourselves to our old decisions and our tired routines, and we can break those chains anytime we want. We can strip the status quo of its hollow authority and demand it prove its worth.
“The way we’ve always done things is wrong.” Try that on for size. Say it out loud several times to get used to it. Savour the sound and feel of it. And then apply it to the legal habit or ritual nearest you, and spur your colleagues to do the same. Keep at it, over and over, until we’ve renewed and revitalized our profession’s most consequential beliefs, practices, and institutions.
The way we’ve always done it is wrong. So let’s stop doing it.