Scott Johns (Denver), Placing the Bar Examination on Constitutional Discover: Minimize Scores, Race & Ethnicity, and the Public Good, 45 Seattle U. L. Rev. __ (2022):
Nothing to see right here. Season in and season out, bar examiners, specialists, supreme courts, and bar associations appear nonplussed, trapped by what they see because the info, particularly, that the bar examination has no doable weaknesses, not less than in the case of different licensure mechanisms, that the bar examination is to not blame for disparate racial impacts that spring from administration of this ritualistic course of, and that there aren’t any viable alternate options within the harsh chilly world of figuring out minimal competency for the noble function of defending the general public from authorized harms. All a lie, in fact.
However moderately than difficult our assumptions, state bar associations and bar examiners hold going as enterprise as typical. We would even say that it’s simply the price of doing enterprise. Sure, some bar candidates can pay the value, they admit, by not passing bar exams, however defending the general public good calls for that we be demanding, that we not yield to temptation to melt our method. We will by no means be too cautious in the case of defending the general public. In spite of everything, the general public good is in danger. Or is it?
This Article challenges standard tales advised concerning the bar examination. Half I describes the background of the bar examination as at present utilized by most jurisdictions to incorporate a hypothetical “Socratic” dialog as a prelude to understanding the bar examination and its affect on demography and the general public good. Half II catalogues tales we inform to justify our recurrent resort to bar exams because the penultimate supply of knowledge in making licensure choices. Half III exposes fallacies behind many of those justifications. Half IV analyzes whether or not we’d look to widespread legislation tort rules as a instrument for exposing whether or not the bar examination, by producing recurrent well-known racial disparate impacts, may endure from constitutional infirmity. Half V concludes with an exploration of some commonsense alternate options to the behemoth of the bar examination to raised defend the general public.