But eliminating the Bar Exam doesn't mean that you eliminate any possible system of quality control: you merely eliminate the Bar Exam, which is an extraordinarily rough instrument. I've actually been thinking about this quite a lot recently.

In fact, we've not created a profession like law or medicine or even accounting for several hundred years, despite the fact that many occupations--including my favorite example, programming software for mission-critical applications like air-traffic control--share most of the salient characteristics that are generally used to justify law as a 'profession.' This doesn't mean that software programmers, or other professionals, aren't given quality standards. The profusion of ISO-900x, professional trade associations that certify their memberships, etc. illustrate that.

For instance, plumbers in England faced a crisis in reliability: because there were some shady dealers, public confidence was eroding, people were delaying home repairs or attempting complex repairs themselves, etc. Now, a 'Bar' style solution would accredit plumbers through a government monopoly, and set them out upon the populace. Meanwhile, anyone doing repair work other than strictly DIY repairs on their own home would be fined or imprisoned for 'practicing plumbing without a license.' Instead, the government helped set up a trade association with its own mark, and has begun educating customers about the association.

Eliminate not only the Bar Exam, but the Bar, and we'd see the rise of similar associations: standards bodies, accreditation bodies, etc. Some might demand three years of law school, but others won't. Some might specialize in certifying transactional lawyers, who may only be certified for conducting ordinary retail transactions--like wills. Others might choose to certify those going through systems like our own.

The key is that individuals will then have a choice: hire a trained professional, for a higher price, in cases where the professional is necessary. In others, he might simply seek the advice of someone wise, learned, or experienced. And that person, himself, would be able to go and argue before the bar if need be. Of course, he'd not be able to match the standards of a trained lawyer--but he might. And a client might take that risk, knowing that if he didn't, then much as today, he might not be able to afford a lawyer at all.

I'm not sure the idea's entirely workable, and I don't know the specific framework yet, but it's probably going to be the topic of a note in the next year. In the meantime, I'd just say that the idea isn't purely 'reflexive': a lot of thought can be put into it.

"No, I am not advocating an apprenticeship, even if it would improve the quality of young lawyers."

Gee - why not, Gordon? Got something against apprenticeships? Would they be demeaning in some way?

What purpose does the bar exam serve if it is not to state-certify a minimum level of competence amongst those who are licensed to practice the profession? And if an apprenticeship would serve to promote that purpose, why eschew them?

I've read recently that in the U.K., where a post-graduate professional degree is also required to practice law (they call it an L.L.B. rather than a J.D.), a bar candidate must first complete a one or two year "practicum" - somewhat akin to the residency that M.D.'s must serve here in the U.S. Do we Americans know something that the Brits don't - or vice versa?

The options seem to be:(1)the status quo, exam w/o the requirement of work experience; (2)exam with the requirement of work experience; or (3)work experience alone. I'm assuming that completing a prescribed course of study (i.e., law school) is a prerequisite for sitting for the exam.

Work experience alone used to be called, I think, "reading for the law". I believe that you can still do that in about 4 states and be admitted to the bar. I don't advocate this avenue, but I guess it's still out there as an option.

Exam w/o the requirement of work experience is what we have now in most jurisdictions.

Exam with the requirement of work experience - either a german style apprenticeship or a british style practicum - remains, evidently, as an unexamined option. Maybe Doug Kern's implicit suggestion is that we examine it.

Two good comments.

Tony, Your idea doesn't sound "reflexive," but Doug Kern's does. He suggests that "the power of public reputation and the fear of a malpractice suit" is all we need. This is silly and reflects tremendous naiveté about the effectiveness of reputational markets and legal sanctions. I am a fan of markets, but not blind to their shortcomings.

You are imagining a world in which standard-setting agencies emerge to replace state bars. This is more nuanced view than Kern's, but aren't state bars themselves standard-setting agencies? Why replace existing agencies with new ones? You seem curious about what "the market" might generate, but I am not sure why the market would produce something that would look substantially different than the status quo.

Two "by the ways": (1) there are a lot of people who do things that look a lot like practicing law, even though they are not lawyers (tax accountants being the most obvious, with social workers a close second), so I think that there may be more diversity in the existing system than most people recognize; and (2) I have a colleague here who studies the formation of standards development, and I can put you in touch with him if you would like. Email me if you are interested.

Bill, Doug Kern surely did not make an "implicit suggestion" that we examine exam + work experience. He was just chafing at having to take the bar. With regard to apprenticeships, I shy away from the idea because it would seem pretty radical here. Seven years for schooling post-high school followed by a mandatory apprenticeship? Remember that the German lawyers begin their study of law as undergraduates, so the years added by the apprenticeship actually move them closer to the age of most new U.S. lawyers.

Also, you may have noticed that I was a bit hesitant about the value of apprenticeships. I am not sure that they serve the purpose intended. Delaware had a number of requirements for those entering the bar, including a six-month stint at a local firm, so it is possible to do something like an apprenticeship in the current system. One problem with mandated apprenticeships in Germany (I heard this complaint several times in my recent trip there) is that established lawyers use this as an excuse to procure cheap labor. They know the newbies need the credential, so the system becomes more about making profit than training. Frankly, I don't know enough to take a firm stand either way on apprenticeships, but it might be worth a look.

This is more nuanced view than Kern's, but aren't state bars themselves standard-setting agencies? Why replace existing agencies with new ones?

The advantage of a standards-setting agency is precisely that it does not have a monopoly on the access to a resource. Sure, the Bar sets standards, but most importantly it controls access.

To take an answer closer to home than computer software for air-traffic control, let's try the kinds of computer-repair/website advice that I give on a regular basis. Sometimes this is complex stuff--taking apart a notebook, for instance--that has substantial risks of fire, data loss, etc. etc. But at the moment, I'm free to send you emails about RSS, or hack about with data recovery tools for some 2L who's lost their thesis to the blue screen of death, or what have you. What I'm not free to do is practice law.

Now, I have zero formal qualifications for any of the above, and two years from now I still won't have any for computer work. Because of this, Amazon.com would probably not employ me as a developer--they'll look for the qualifications. But I'm still free to sell-or give away-my services to anyone who needs them.

What would happen if we regulated programmers like we do lawyers? Well, I'd probably be studying for qualifications as a 'professional,' developers would be a lot wealthier, and people who wanted to do projects that required low-level software development would be priced out of the market: roughly what we have now for lawyers.

The primary difference between a standards body and a profession is that the standards body does not hold the keys to the market: you can choose non-professional practitioners when cost, risk, and time justify it.

At least, that's my current thought. I'd greatly appreciate the contact with your colleague, however, to clear up some of my thinking.