The economics of bar exams

Do we really need 50 separate State bar exams in an era of global markets? We have always thought that bar exams and other forms of occupational licensing should be declared illegal restraints of trade under U.S. antitrust laws. After all, you don’t need a license to sing opera or play baseball (or teach law!), and yet somehow, the lack of occupational licensing in these fields has not diminished the quality of operas or baseball games at the professional level. In addition, one of the worst aspects of occupational licensing is that they are “location specific”: a barber’s license or taxi permit in one city is not valid in any another. Likewise, a law license issued by one State bar is not valid in any other State. But this anti-competitive lack of license-portability in the field of law may soon begin to change, now that New York State will officially replace its traditional (i.e. State-specific) bar exam with a standardized bar exam called the Uniform Bar Exam, according to this report in the N.Y. Times. Traditionally, law school graduates are authorized to practice law only in the State in which they have passed the bar exam. The Uniform Bar Exam, by contrast, is “portable,” meaning that law school graduates that pass this exam will be able to practice law in any of the States which have adopted it. (With New York, sixteen States have now adopted a standardized national bar exam. The nation’s three most populous states–California, Texas, and Florida–however, still run State-specific bar exams.) Will New York State’s move produce a Schellingesque “tipping point” leading to a national bar exam?

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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3 Responses to The economics of bar exams

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  3. ohwilleke says:

    The status quo reality is a bit more complex. Almost all law graduates take two standardized tests which are nationally uniform, the Multistate Bar Exam and a Professional Responsibility Exam. Most students have a third component consisting of essays on state specific law, although some states don’t grade if it you score high enough on the multistate and allow reciprocity without a new exam if your score was good enough without taking the local portion after you passed in another state. Many states also wave the bar exam for lawyers who have practiced for five years or more. All states, however, have an additional component that is not transportable – a character and fitness review (basically a highly intrusive fingerprint based background check).

    There is certainly a more legitimate reason to have separate bar admissions than in many other professions. Baseball rules are the same in every state. So, by and large, are building codes almost all of which are based upon a uniform model code. But, state laws differ more than you would expect in some areas (e.g. real estate). At least in principle, passing a state specific bar exam gives an indication of some study of, and at least passing familiarity with, the peculiar aspects of a particular state’s laws.

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