I recently came across a headline stating that Washington, the state I grew up in, will no longer require aspiring lawyers to pass the bar exam to practice law. Intrigued, I did some research and found out that this decision was influenced by DEI (Diversity, Equity, and Inclusion) concerns.
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In a presentation to the Washington State Bar Association Board of Governors, Washington Supreme Court Justice Raquel Montoya-Lewis, a chair of the Bar Licensure Task Force, explained that the move was partly in response to law students raising equity issues. She highlighted that the bar exam has historically and disproportionately impacted examinees of color, who tend to fail the exam at higher rates.
At first glance, this policy change might seem problematic. However, I see potential positives here.
Firstly, libertarians, who often critique government regulations for disproportionately affecting vulnerable communities, can understand the concern over the bar exam's impact. Milton Friedman, for example, argued that the disemployment effects of the minimum wage disproportionately harmed the black community, showing that such disproportionate impacts are significant.
Secondly, libertarians typically oppose barriers to entry into professions, including licensing and certification requirements. They believe that without such regulations, mechanisms like private certification and reputation would ensure quality. David Friedman, for instance, cited a case where private certification of egg quality in England produced better results than government regulation in the U.S. Libertarians argue that mandated certifications often serve as a smokescreen for entrenched interests to avoid market competition.
Thirdly, unlike many DEI initiatives, this change applies equally to everyone. Unlike college admissions, which can give or deduct points based on race, this policy simply offers additional ways for anyone to qualify as a lawyer. While the change is expected to benefit minorities, it doesn’t involve applying different standards based on race.
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Moreover, other states have relaxed regulations on legal services, increasing access without negative effects. Washington’s new law doesn’t allow just anyone to argue in court; it provides alternatives to the bar exam, such as a six-month apprenticeship, completing state-approved courses, or earning skill credits and work experience as a legal intern. These options open the door wider without removing the gate entirely, allowing more people to start their careers and prove their competence over time.
From a libertarian perspective, this policy change is positive. However, it presents a trilemma for progressives:
1. If the bar exam isn't necessary for lawyer competence and alternatives suffice, this undermines the need for many other regulations.
2. If the bar exam is necessary but having competent lawyers isn't crucial, dropping the requirement seems illogical.
3. If the bar exam is necessary and competence is important, prioritizing demographic makeup over competence is hard to justify.
In conclusion, the removal of the bar exam requirement, driven by DEI concerns, is a policy that libertarians can support but might make progressives uneasy. This surprising perspective emerged as I delved deeper into Washington's decision.
