Enhancing the Validity and Fairness of Lawyer Licensing: Empirical Evidence Supporting Innovative Pathways

Ohio State Legal Studies Research Paper No. 800

Washington University Journal of Law & Policy (Forthcoming)

69 Pages Posted: 13 Sep 2023

See all articles by Deborah Jones Merritt

Deborah Jones Merritt

Ohio State University (OSU) - Michael E. Moritz College of Law

Andrea Anne Curcio

Georgia State University - College of Law

Eileen R. Kaufman

Touro University - Jacob D. Fuchsberg Law Center

Date Written: September 11, 2023

Abstract

A two-day written bar exam cannot test a prospective lawyer’s ability to counsel clients, investigate facts, research novel issues, negotiate with adversaries, and perform other tasks that are essential for competent lawyering. The conventional exam has also become a test of resources, favoring candidates who can afford to buy commercial prep courses and devote 8-10 weeks to full-time study. Cognizant of these flaws, several states have begun exploring alternative approaches to licensing. Oregon has already implemented a small program that allows some law graduates to demonstrate their competence by practicing under the supervision of a licensed attorney and compiling portfolios of work product from that supervised practice. Candidates submit those portfolios, which include materials related to client counseling and negotiation, to bar examiners for independent assessment. Oregon’s Supreme Court is considering a proposal to expand this program, and other states are exploring similar approaches.

This article provides the first empirical evidence that supervised practice offers a valid, feasible, and fair context for evaluating prospective lawyers’ competence. Oregon’s current program is too small to assess empirically, but two related programs in California offer a rich dataset about the potential for assessing prospective lawyers’ competence through supervised practice. Our analyses, which draw upon qualitative and quantitative data from more than four thousand law graduates and licensed lawyers in California, demonstrate that: (1) Licensing programs rooted in supervised practice allow states to assess a broader range of lawyering skills and doctrinal knowledge than can be assessed on a two-day, written exam. (2) Candidates readily find supervisors, and both parties reap many benefits from the program. (3) Supervised practice is fully accessible to first-generation candidates, candidates of color, women, and candidates who live with disabilities. In fact, women of color, men of color, and white women were significantly more likely than white men to take advantage of California’s supervised practice options. (4) Supervised practice licensing paths can expand access to justice by increasing the number of lawyers who work for legal services providers and in rural parts of a state.

Licensing paths rooted in supervise practice, in sum, are valid, feasible, and fair pathways that can protect the public better than a two-day written exam, make our profession more inclusive, and expand access to justice.

Keywords: bar exam, licensing, legal education, law schools

Suggested Citation

Merritt, Deborah Jones and Curcio, Andrea Anne and Kaufman, Eileen R., Enhancing the Validity and Fairness of Lawyer Licensing: Empirical Evidence Supporting Innovative Pathways (September 11, 2023). Ohio State Legal Studies Research Paper No. 800, Washington University Journal of Law & Policy (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4568297 or http://dx.doi.org/10.2139/ssrn.4568297

Deborah Jones Merritt (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-7933 (Phone)
614-292-4868 (Fax)

Andrea Anne Curcio

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Eileen R. Kaufman

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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