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Welcome news last week out of Oregon, where the state Supreme Court unanimously \u201capproved in concept\u201d two alternative pathways to lawyer licensure<\/a> that don\u2019t involve writing the bar exam. The potential new routes to bar admission were proposed in the July 2021 report of the Oregon State Board of Bar Examiners\u2019 Alternatives to the Bar Exam Task Force.<\/a> The state Supreme Court asked the Board to develop an implementation plan<\/a> for the alternatives in six months\u2019 time.<\/p>\n The proposed new routes are straightforward. Licensure candidates who choose the pre-graduation \u201cOregon Experiential Pathway\u201d would spend the last two years of law school carrying out clinical and simulation-based coursework, while those who choose the post-graduation \u201cSupervised Practice Pathway\u201d would spend 1,000 to 1,500 hours working under the supervision of an experienced attorney. The bar exam would still be available for any candidate who preferred it.<\/p>\n The state Supreme Court invited public input on the report last summer, and despite not remotely being an Oregon lawyer, I submitted my strong endorsement of the alternatives (aside from some real reservations about the degree to which the SPP replicated many of the downsides of the Canadian articling requirement). If you\u2019re interested in those thoughts, I left a slightly modified version as a comment on a blog post<\/a> by Willamette Law School Dean Brian Gallini, a member of the task force whose school is already hiring new faculty to offer the Experiential Pathway<\/a>.<\/p>\n Why do I support these new routes to licensure? That is, other than the fact that the bar exam is a gruelling ordeal<\/a> with a racist and exclusionary history<\/a> that has never been validated<\/a> and now endangers the health of licensure candidates<\/a> by testing indoors in-person in a pandemic and, by the way, doesn\u2019t actually assess<\/a> a candidate\u2019s readiness to practise law<\/a>? Besides those minor irritants<\/a>?<\/p>\n I support these new measures because they give a licensure candidate the opportunity to actually engage in the work of a lawyer \u2014 to \u201cpractise the practice of law,\u201d if you will. They diversify and enhance the path towards lawyer licensure by adding \u201csupervised experience\u201d to the existing elements of \u201cknowledge of the law\u201d and \u201cunderstanding of professional responsibility.\u201d\u00a0 They deepen the candidate\u2019s competence and enhance their self-confidence. Would you prefer to hire a lawyer qualified by a written exam, or a lawyer who\u00a0acquired the basic skills of lawyering by direct supervised engagement in real or simulated practice?<\/p>\n If Oregon does indeed introduce these two new pathways, it could start a chain reaction in other states. Wisconsin already waives the bar exam for graduates of accredited in-state law schools<\/a>, and New Hampshire helped inspire Oregon with the Daniel Webster Scholar Honors Program<\/a> at the Franklin Pierce School of Law. But Oregon\u2019s task force report has been cited by the State Bar of California\u2019s Blue Ribbon Commission on the Future of the Bar Exam<\/a>, which heard testimony from the task force chair late last year. New York has reported similar reflections<\/a>. Either of these states adopting bar exam alternatives would amplify the impact of Oregon\u2019s move many times over; if they both did so, the game would truly change for good.<\/p>\n All of this is undeniably positive. But still, one aspect of this story has made a bad impression on me, and has brought to the surface many of my long-simmering frustrations with the legal profession.<\/p>\n A recurring theme of the Oregon Task Force Report, as well as task force members\u2019 submissions to the Supreme Court<\/a> and other public comments<\/a>, is that these two alternatives are in no way \u201cless rigorous\u201d than the bar exam. Apparently, some lawyers and regulators need reassurance that two full years of practical law school instruction, clinical work and externships (plus a capstone project), or 1,000 hours (equal to 25 40-hour weeks, or more than six full months) of supervised work for actual law firm clients, would be just as tough and stringent<\/em> an assessment as 12 hours of answering written exam questions. It needs to be proven that this would not constitute \u201clowering the bar\u201d<\/a> for licensing.<\/p>\n This maddens me. It\u2019s not just that the proposed Oregon pathways are valid means of establishing a licensure candidate\u2019s fitness to be a lawyer. It\u2019s that this is so obviously<\/em> the case. Does it make sense that practical instruction and supervised experience are equal if not better tests of competence than passing a written exam? Of course it does. If your house was being engulfed in flames, would you want the responding firefighters to have had practice putting out conflagrations, or just have written an exam about fire<\/a>?<\/p>\n But the bar exam has one nearly insurmountable advantage over every other type of licensing method: It was here first. For many lawyers, and for most legal regulators, that\u2019s apparently the only criterion that matters. I sometimes think that if the existing licensure test for lawyers was to bang two rocks together until they produced a spark, defenders would line up to justify this remarkable feat of skill and insist upon its irreplaceability.<\/p>\n And defenders are not hard to find. The National Conference of Bar Examiners, which creates and administers the bar exam, created a \u201cTesting Task Force\u201d<\/a> to come up with a \u201cnext generation\u201d exam, which is progress of a sort. But when the chair of the task force publicly states that<\/a> \u201cthe bar exam is a valid measure and a highly reliable measure\u201d of competence, and that she is \u201c1,000% convinced\u201d that the American attorney licensing process is working as it should, then I become deeply disheartened.<\/p>\n Because this isn\u2019t just about lawyer licensing in the United States. \u201cThe way we\u2019ve always done things\u201d has an iron grip on this profession. I mean, it took a pandemic that killed millions of people worldwide before law firms would even contemplate letting their lawyers work from home. And that\u2019s almost the only real shift away from the professional status quo<\/em> in the law I can point to.<\/p>\n