In
The
Washington
Post,
NYU
adjunct
professor
Max
Raskin
advances
the
entirely
defensible
claim
that
the
bar
exam
is
a
cartel
instrument
designed
to
keep
prices
high,
outsiders
out,
and
the
whole
profession
wrapped
in
the
same
warm,
self-satisfied
delusion
that
making
future
securities
lawyers
memorize
the
Rules
of
Evidence
has
ever,
even
once,
identified
who
will
be
a
competent
lawyer.
Fair
enough.
Totally
agree
on
that
front.
The
bar
exam
is
a
flaming
sack
of
Scantron-bubbled
garbage.
But
the
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
fundamental
problem
with
Raskin’s
broadside
against
the
bar
exam
because
he
goes
beyond
bashing
the
bar
exam
as
a
bad
test
to
questioning
the
need
for
professional
licensing
at
all.
Kardashian
is
a
flawed
hero
for
bar
exam
reform,
but
fits
into
an
argument
for
a
world
of
no
licensing
at
all.
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.
No,
being
a
lawyer
is
not
the
same
as
running
a
bar.
An
incompetent
lawyer
leaves
clients
in
financial
ruin
or
prison,
while
an
incompetent
bartender
leaves
clients
with
a
subpar
martini.
The
free
market
can
sort
out
bad
bartenders
over
time,
but
it
doesn’t
do
much
for
the
guy
serving
25
to
life
while
the
rest
of
the
market
catches
up
on
the
lawyer’s
Yelp
reviews.
Many
jobs
don’t
require
expensive
licensing.
Attorney
is
not
one
of
them.
The
Uber-fication
of
legal
gives
real
“libertarian
startup
pitch
deck”
energy.
And
I’m
still
trying
to
figure
out
how
justice
doesn’t
end
in
truly
vicious
surge
pricing
in
this
model.
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.
But…
we
do.
We
don’t
have
an
“additional
three
years”
of
school
for
either
of
those
jobs,
but
we
do
have
schools
for
them.
We’ve
had
a
national
level
push
toward
trade
schools
since
the
tail
end
of
the
Obama
administration.
There
are
also
accepted
licensing
procedures
for
both.
Auto
mechanics
are
certified
through
an
industry
test,
and
even
though
the
government
isn’t
running
that
test,
many
jurisdictions
require
passage
of
the
industry
test
to
perform
key
tasks
as
a
mechanic.
Electricians,
on
the
other
hand,
absolutely
do
get
state
licenses.
Every
state
requires
some
sort
of
electrician
certification.
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.
Hopefully
lawyers
are
not
doing
critical
legal
research
with
Google.
But,
yes,
the
bar
exam
expects
applicants
to
answer
doctrinal
questions
about
areas
of
law
they
don’t
specialize
in
from
snap
memory,
which
in
real
world
is
what
we
would
call
“malpractice.”
It
is
a
goofy
stand
in
for
“the
kind
of
person
who
makes
an
effective
lawyer.”
You
know
what
might
be
a
better
stand
in
for
the
kind
of
person
with
the
temperament
to
engage
in
grueling
legal
study?
A
LAW
SCHOOL.
This
is
why
diploma
privilege,
coupled
with
more
rigorous
standards
for
law
schools
to
actually
turn
out
graduates
capable
of
doing
the
job
—
as
opposed
to
collecting
their
tuition
dollars
and
wishing
them
luck
on
the
bar
exam
—
makes
for
the
best
licensing
model.
You
know,
sort
of
like
the
one
Wisconsin
figured
out
ages
ago.
Which
is,
again,
why
the
best
defense
of
the
bar
exam
is…
Kim
Kardashian.
The
only
defensible
purpose
of
an
additional
written
test
of
legal
knowledge
is
to
vet
someone
who
decided
to
skip
out
on
law
school.
This
test
doesn’t
have
to
be
the
current
bar
exam.
In
fact,
it
should
be
something
more
closely
resembling
Utah’s
new
proposed
written
test,
which
focuses
on
skills
and
aims
to
be
something
that
a
competent,
currently
practicing
lawyer
could
pass
without
any
studying.
If
we’re
testing
minimum
competence,
then
existing
practitioners
should
by
default
be
able
to
pass
with
ease
or
there’s
something
even
more
desperately
wrong.
Lawyers
are
not
doctors,
so
more
experimentation
in
the
legal
profession
can
be
tolerated.
Lawyers
are
not
constantly
making
life-or-death
decisions,
and
when
they
do,
there
are
procedures
to
ensure
that
counsel
is
competent.
Run-of-the-mill
contract
review
and
regulatory
filings,
however,
don’t
warrant
a
licensure
scheme.
Seriously?
Yes,
lawyers
are
not
doctors,
but
this
is
a
country
that
convicts
people
of
murder
when
their
lawyer
falls
asleep
in
court.
So
pardon
us
for
being
a
tad
skeptical
of
the
“procedures
to
ensure
that
counsel
is
competent.”
Obviously,
law
school
and
the
bar
exam
didn’t
protect
that
client,
but
it
underscores
how
something
needs
to
be
in
place
before
opening
the
door
to
every
rando
because
a
“kill
them
all
and
let
God
sort
them
out”
approach
to
the
market
will,
in
fact,
kill
a
lot
of
people
while
the
market
sorts
it
out.
And
that
goes
for
victims
of
companies
concealing
their
work
with
fraudulent
regulatory
filings
as
much
as
for
wrongfully
convicted
defendants.
This
is
especially
true
in
light
of
advances
in
artificial
intelligence.
Stop.
AI
systems
already
draft
wills,
nondisclosure
agreements,
term
sheets,
employment
contracts
and
regulatory
memos
at
associate-level
quality.
No,
they
don’t.
There
are
those
who
point
to
the
occasional
lawyer
who
doesn’t
check
hallucinated
citations
and
embarrasses
himself
in
court,
but
these
are
exceptions.
The
vast
majority
of
lawyers
who
use
AI
don’t
want
to
admit
it
for
the
same
reason
doctors
don’t
want
to
admit
to
Googling
symptoms,
so
there
is
a
negative
selection
bias
where stories
of
federal
judges sloppily
using
AI
catch
more
attention
than
routine
use
of
the
tool.
This,
however,
is
true.
AI
is
not
doing
associate
level
work
unless
you
happen
to
work
with
really
terrible
associates.
AI
drafts
documents
that
look
like
associate-level
work.
Which,
in
its
defense,
is
still
extremely
useful
and
AI
can
do
valuable
work
when
drafting
based
off
a
well-curated
knowledge
base.
Coupled
with
a
competent
attorney,
AI
can
make
the
start-to-finish
legal
workflow
much
faster.
Lawyers
(or
judges)
who
don’t
check
AI
are
the
real
problem,
not
the
technology
itself.
But
don’t
let
the
technology
totally
off
the
hook.
The
acceleration
of
the
workflow
creates
the
conditions
for
disaster,
compressing
those
moments
of
pause
where
lawyers
engage
in
the
iterative
and
collaborative
processes
that
refine
(and
sometimes
completely
reorient)
the
work.
Someone
competent
needs
to
be
on
the
other
end
of
this
or
it’s
just
an
express
lane
to
legal
slop.
The
public
should
feel
confident
that
the
smooth
talker
they’ve
hired
will
be
that
competent
thinker.
If
anything,
the
expansion
of
legal
AI
makes
the
need
for
an
agreed
upon
certification
process
more
dire
because
work
product
is
going
to
get
more
homogenized
with
everyone
using
the
same
LLMs
and
human
editing
is
going
to
be
the
only
differentiator.
Also,
doesn’t
this
whole
AI
argument
cut
the
opposite
direction?
If
one
assumes
that
AI
is
a
magic
box
that
can
do
most
legal
work,
the
cost
of
legal
work
would
fall
anyway,
regardless
of
its
guild-like
structure.
In
this
hypothetical
world,
lawyers
are
churning
out
drafts
with
a
fraction
of
the
human
staff.
Flooding
the
market
with
more
untrained
attorneys
lacks
the
price-busting
power
it
would
have
in
a
pre-AI
world.
One
of
the
most
nefarious
forms
of
protectionism
is
the
limit
on
nonlawyers
being
partners
in
law
firms.
This
rule
prevents
specialization,
which
is
the
cornerstone
of
economic
order.
Why
would
someone
think
that
a
lawyer
who
has
trained
in
a
narrow
field
would
be
good
at
firm
operations
or
marketing
or
hiring?
In
most
other
industries,
chief
technology
officers
deal
with
tech,
chief
operation
officers
deal
with
operations
and
hiring
is
with
human
resources.
But
in
law
firms,
essentially
all
the
ultimate
decision-makers
must
be
lawyers.
Kim
Kardashian
could
surely
run
a
more
efficient
marketing
department
than
a
white-shoe
firm.
Law
firms
already
hire
chief
technology
officers.
There’s
nothing
about
the
limit
on
non-lawyer
ownership
that
prevents
building
out
a
non-lawyer
C-Suite.
Whether
it’s
a
good
idea
to
let
private
equity
funds
run
law
firms
or
not
is
a
debate,
but
it’s
not
what
prevents
firms
from
hiring
specialist
officers.
These
rules
are
marketed
as
protecting
justice
when
they
really
protect
incumbents.
Over
the
past
decade, legal
costs
have
risen by
about
twice
the
rate
of
inflation,
while
technology
should
have
driven
costs
down.
True,
though
lawyers
are
just
catching
up
after
running
below
inflation
for
years.
We
ideally
want
legal
costs
lower
and
more
accessible
while
lawyers
make
their
nut
on
technology
assisted
volume,
but
we
also
need
some
way
to
assure
the
public
—
before
they
end
up
in
prison
—
that
the
lawyer
they’re
talking
to
is
competent.
The
bar
exam
is
a
horrible
mechanism
for
this.
Law
school
is
better.
Which
brings
us
back
to
Kim
Kardashian.
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.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.