photo by Michael Coghlan
It has become a cliche to say that we live in a globalized economy. But that doesn’t make it true - at least not for all of us.
For instance, the legal profession still operates in some respects as though we live in the 19th century, when new practitioners hung their shingles after merely “reading the law,” and judges and counselors alike served rural America by “riding the circuit.”
Granted, we do not have self-taught lawyers anymore - though the Internet may eventually change that. And only one state, Wisconsin, retains the diploma privilege, in which graduates of the state’s two accredited law schools are eligible for admission to the bar without first having to pass the much-feared bar examination.
But in most states, the legal profession still operates more like a preindustrial guild than a postindustrial industry. As an example, only lawyers are allowed to own law firms, on the dubious theory that outsiders’ capital, and the resulting increase in competition, would compromise the interests of clients. And individual lawyers may ply their trade only in states where they have secured individually state-issued licenses, though there are special provisions in which a court can grant limited permission for an out-of-stater to appear in a particular case.
Historically, each state has tied its licensing to its own individual bar exam. A lawyer wishing to relocate or to practice across state lines had to sit for multiple examinations in order to do so, except in cases where two states granted some form of reciprocity. Taking a new test requires not only a significant investment of time, but also significant additional fees.
That arrangement is slowly beginning to change, however.
Given the large body of federal law that applies in many situations, along with the large and growing body of uniform state laws that are based on a model statute and often adopted by state legislatures with little change, a national law credential would make a lot of sense. Unfortunately, it doesn’t exist. Nor is one on the horizon.
But the next best thing is a uniform national bar exam. That does exist, and New York recently announced plans to become the 16th, and so far the largest, state to implement it as of next year.
The test, called the Uniform Bar Examination, includes questions about general principles of law, along with six essay questions and two “skill tasks,” such as drafting a client letter or creating a memorandum. In New York, students will also have to pass a shorter multiple-choice exam with questions specific to New York state.
The major advantage of the Uniform Bar Exam for test-takers is that the score can be transferred across jurisdictions. So in the future, a lawyer who passes the bar in New York and who later relocates to Seattle can have her official transcript sent to Washington; if she meets Washington’s criteria, she can simply fulfill a few requirements instead of sitting for the entire test again. The more states that adopt the standardized test, the more attractive it will become.
The three states with larger populations than New York - California, Texas and Florida - do not offer the Uniform Bar Examination so far. Nor does Delaware, a state whose legal influence is outsize relative to its population because the state is home to many corporations. (Delaware lawyers do very well by this fact.) But many hope that New York’s adoption of the test may push other big states in that direction.
New York’s move has very little to do with serving the interests of the broader public. It has a lot to do with serving the interests of the state’s law schools, who - like everybody else these days - struggle to fill their classes. Jonathan Lippman, the chief judge of New York State, made this clear when discussing his decision to adopt the Uniform Bar Exam. “Law school enrollment for first-year students has declined 30 percent in the past four years,” he said, “and is at the lowest level since 1973.” New York’s law schools would love to attract candidates who ultimately hope to practice elsewhere, where prospects for economic growth are better.
But just because New York is thinking of its schools and not its populace as such doesn’t mean this isn’t a useful step. Young Americans are no longer likely to spend their entire working careers in states where they grow up or go to school. Nor are they well-served by having their professional practice limited to just one state. A universal bar exam would recognize this new reality.
The legal profession remains about as far from the globalized world as young Abe Lincoln was from the jet age. The trend toward the Uniform Bar Examination is at least a small step in the right direction. It is also a sign that the people who set the rules for the legal community may have at least a vague awareness of the world around them.