At Volokh Conspiracy, Ilya Somin writes:

This week, many of my former students will be undergoing the painful experience of taking the Virginia bar exam. My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn’t required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

What changes would we see if it was no longer necessary to pass the bar in order to practice law?  We can analyze this in two steps.  First, hold everything else about the bar exam fixed and ask how the market will react to making it voluntary.

The first effect would be to encourage more entry into the profession.  Going to law school is not as much of a risk if you know that failing the bar is not fatal.  There would be massive entry into specialized law education.  Rather than go to a full-fledged law school, many would take a few practical courses focused on a few services.  Traditional law schools would respond by becoming even more academic and removed from practice.

Eventually the bar will be taken only by high-level lawyers who work in novel areas and whose services require more creativity and less paper pushing.  But the bar will no longer be the binding entry barrier to these areas.  The economic rationale for the entry barrier is to create rents for practicing lawyers so that they have something to lose.  This keeps them honest and makes their clients trust them.

Now reputation will provide these rents. Law firms, even moreso than now, will consist of a few generalist partners who embody all of the reputation of the firm and then an army of worker-attorneys.  All of the rents will go to the partners.  The current path of associate-promoted-to-partner will be restricted to only a very small number of elites.

As a result of all this, competition actually decreases at the high end.

All of these changes will alter the economics of the bar exam itself.  Since the bar is no longer the binding entry barrier, bar associations become essentially for-profit certification intermediaries.   This pushes them either in the direction of becoming more selective, extracting from further increases in rents at the high end or less selective and becoming effectively a driver’s license that everyone passes (and pays a nominal fee.)  Which direction is optimal depends on elasticities.  Probably they will offer separate high-end and low-end exams.

My bottom line is that banning the bar increases welfare but perhaps for different reasons than Somin has in mind.  Routine services will become more competitive and this is good.  Increased concentration at the high end is probably also good because market power means less output and for the kinds of lawyering they do, reduced output is welfare-improving.

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