My attention was recently drawn to a headline declaring that Washington, the state I grew up in, would no longer require aspiring lawyers to pass the bar exam in order to become practicing lawyers. I did a bit of reading on the subject and it turns out this decision was motivated by DEI concerns:

During a September presentation before the Washington State Bar Association Board of Governors, Washington Supreme Court Justice Raquel Montoya-Lewis, one of the chairs of the Bar Licensure Task Force, said the movement comes in part “from law students who have raised issues about equity, not just in the history of the adoption of the bar exam, but also over the course of many decades, when you look at the disproportionate impacts that the bar exam has on examinees of color.”

She went on to note, “They tend to fail the bar exam in disproportionate numbers.”

Now, this might immediately strike you as a horrible shift in policy. But I see several ways to see some positive developments here. 

First, it’s worth pointing out that concerns over a disproportionate impact of policies on minorities is not something libertarians need to disregard. In fact, it’s very common for libertarians to highlight how various government regulations disproportionately affect vulnerable communities as reasons to be opposed to such regulations. Milton Friedman famously argued that the disemployment effects of the minimum wage disproportionately harmed the black community – he clearly didn’t think this disproportionate impact was morally irrelevant.

Second, libertarians often worry about barriers to entry into a profession, including when they take the form of official requirements for licensing and certification. Libertarians are much more confident than most that in the absence of such regulations, a variety of mechanisms would develop to ensure quality, such as private certification and reputation. See, for example, this case cited by David Friedman where private certification of egg quality due to market pressure in England produced superior results to government regulation of the same issue in America. Libertarians have long argued that legally mandated certifications invoke concerns about “the public good” as a smokescreen for entrenched interests to shield themselves from competition on the market. 

Third, unlike many DEI-style initiatives, this is a change in rules that equally applies to everyone. Unlike in cases like college admission, where you can essentially get bonus points towards admission (or deducted from admission!) depending on what race you are, this program simply makes additional means to qualify as a lawyer available to everyone. The architects of this program certainly anticipate the outcome of this change in the rules will particularly benefit minorities, but that’s still not the same as applying different rules to people based on their race or holding them to different standards on account of their race.

I’ve written before about how some states have loosened regulations on the provision of legal services, resulting in more legal services becoming available to people of limited means without any apparent negative effects. And Washington isn’t going so far as allowing just anyone to show up in a court and argue a case. This new law allows the bar exam to be substituted with a variety of other means to qualify to practice law, such as “completing a six-month apprenticeship while being supervised and guided by a qualified attorney and complete three state-approved courses, or finishing 12 qualifying skill credits and 500 hours of work as a legal intern, or completing standardized educational materials and tests under the guidance of a mentoring lawyer, in addition to 500 hours of work as a legal intern.” So the gates haven’t been thrown down – they’ve just been opened a bit wider. These extra options will allow more people to get their proverbial foot in the door. Perhaps because they didn’t qualify through the traditional bar exam, they’ll be in lower demand and start their careers at a lower rung making less pay – but as time goes on they can develop a reputation based on the skill they demonstrate and rise up in the profession, rather than being shut out at the gate. This seems good to me, at least from a directionalist stance. 

So I can find reasons to like this policy change from a libertarian perspective. However, I wonder how progressives would interpret it from within a progressive perspective. Now, some progressives may oppose this move, of course. But some will support it. And among those who support it for the DEI reasons that were cited, it seems to create the following trilemma:

  1. The bar exam requirement isn’t necessary to ensure a high degree of competence among lawyers – this can be achieved through other means such as alternative qualifications and reputation gained through demonstrated competence. This fits with what I’ve argued so far, but I imagine this response could also make progressives nervous, because once you allow this, huge portions of the administrative state suddenly become very vulnerable. So this seems like a high risk argument for a progressive to make. 
  2. The bar exam is necessary to ensure a high degree of competence among lawyers, but having legal services provided by a competent lawyer isn’t that important, so we can drop the requirement for the bar exam. This, too, seems unpalatable from the progressive mindset, particularly given that progressives are often very worried about issues like criminal justice and incarceration.
  3. The bar exam is necessary to ensure a high degree of competence among lawyers, and having competent legal representation is indeed very important. However, ensuring that the demographic makeup of practicing lawyers looks the way we think it should is more important than both of these factors combined. This, too, seems pretty hard to say with a straight face. 

So there’s my counterintuitive hot take on this issue – the removal of the requirement to pass the bar exam, taken in the name of DEI, is actually a policy move that libertarians can view optimistically but should make progressives very nervous. I admit, I didn’t expect to reach that conclusion when I started reading about Washington’s decision, but here we are.