Washington Post Op-Ed: Actually, the bar exam failed Kim Kardashian, by Max Raskin (NYU):

The test is not about quality control for lawyers, it’s about quantity control of lawyers.

It’s easy to laugh at Kim Kardashian, who recently announced that she failed the California bar exam, joining the ranks of celebrities such as Kamala Harris and Jerry Brown. But Kardashian’s failure is not a knock on her — it’s an indictment of the bar, one of the most powerful guilds in America. And for the first time in a century, technological change may finally break that cartel’s grip.

The bar exam, the Law School Admission Test and law school itself are the price you pay for joining a government-protected legal guild — no different from taxi medallions or liquor licenses. It is essentially illegal to represent someone else in court without passing this test, which is an exception to the general rule that people should be allowed to hire whomever they want without the government’s permission. In California, almost half of the 7,362 applicants who sat for the July exam this year failed. These numbers are not based on some inviolate benchmarks but based on California having one of the nation’s highest cutoff scores for passing (a score that is adjusted depending on the whims of the California Supreme Court).

The best defense of this system is that while it is not necessary to memorize the arcane rule against perpetuities to be a competent lawyer because you can always use Google, the temperament of the person who has the sitzfleisch to study for these exams is the kind of person who makes an effective lawyer. Before she could apprentice, instead of attending a traditional law school, Kardashian said she failed the required “baby bar” exam three times. The argument goes that this demonstrates she is not temperamentally or intellectually suited to be a lawyer. (She did pass it on her fourth attempt.)

Many empirical studies question the effectiveness of the bar exam in predicting lawyerly prowess, but this should be settled by a free market. We don’t make auto mechanics or electricians go to school for an additional three years, even though their professions can cause much more physical harm. We rely on credentials, social signaling, reviews and other market mechanisms for determining quality. In America, central planners don’t decide how many members of the population are allotted to each profession. …

The bar can fight by invoking tradition, fearmongering and tightening the rules, or it can open the doors and allow for innovation. Justice is not meant to be a luxury good.

Above the Law, Actually, Kim Kardashian Is The Best Argument FOR The Bar Exam:

[T]he headline and hook? “How the bar exam failed Kim Kardashian” is just … no. No, we’re not doing this. We’re not hoisting Kim Kardashian upon the cross of professional licensure reform. The only good argument FOR the bar exam is Kim Kardashian.

Unfortunately, an essay on the futility of the bar exam and the desperate need for states to develop alternatives to a generalist memory test for a profession of specialists probably doesn’t grab the attention of the Washington Post and certainly not the attention of the public at large. But with one of the most — if inexplicably so — famous people in the world grafted onto the polemic, it stands a chance of reaching a broader audience. And so this piece is framed around Kardashian’s quixotic and confusing quest for esquireship. But not all publicity is good publicity and tying the fight against the bar exam to Kim Kardashian does more harm than good.

She’s not Our Lady of Perpetuities, she’s a reality star without an undergrad degree — let alone a law degree — trying to shortcut into a law license to perform admittedly good work that she already does without being a lawyer anyway! Kardashian’s work supporting challenges to wrongful convictions and relief from excessive sentences doesn’t need another lawyer, it needs a billionaire to bankroll a bunch of lawyers.

But she does not make a sympathetic figure for bar reform. If anything, the public sees a billionaire dilettante cutting corners. Say what you will about Elle Woods, but she actually went to Harvard. This isn’t meant to diminish the work that Kardashian’s put into this effort. Her “reading the law” pathway absolutely involves real work, and is a time-honored pathway harkening back to the days before law schools metastasized into debt factories. But we’re trying to persuade the public that the bar exam fails to effectively vet future lawyers and “it kept out that rich woman from TV who never went to college” strikes most people as the bar exam doing its job. …

The bar exam isn’t failing Kim Kardashian. It’s failing the law school graduates who more than meet any reasonable standard of “minimum competence” because the test is administered as a quantity control mechanism for the profession. But Kardashian isn’t a law school graduate who completed a course of study at an accredited institution. She’s the exact reason the public thinks a test like the bar exam is necessary in the first place.

Kill the bar exam tomorrow, replace it with statewide supervised-practice pathways, tighten accreditation oversight, and give diploma privilege to schools that produce actually competent graduates. Then reserve the exam — a better one, not the dumpster fire we have now — for the narrow slice of candidates not covered by those systems.

We don’t need to abolish a written exam because it was unfair to Kim Kardashian. We need to abolish the exam because it’s unfair to everyone else. But we absolutely need some kind of licensing.

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