Bài này ba tác giả bàn về thi luật sư (bar exam) ở Mỹ. Số liệu và các phân tích dù liên quan đến Mỹ nhưng đọc kỹ có khi cũng tham khảo được cho Việt Nam. Tải bài trên SSRN ở đây.
More than 40% failed
In 2019, nearly seventy thousand people took the bar exam. More than forty percent failed. Given the existing scores required to pass those exams (the “cut score”), nearly thirty thousand test-takers otherwise qualified to practice law were lost to the profession. Had the cut score been lower, many would now be lawyers. So it goes every year, with staggering costs. Legal educators devote substantial resources to teaching tens of thousands of people legal skills that never get put to use. A national crisis in access to justice grows more entrenched. Applicants invest three years and countless thousands of dollars of legal education, then find the way on the path they had charted to upward mobility and a professional career barred. The exclusion disproportionately affects the members of underrepresented and disadvantaged groups who stand to benefit most from entry. Concurrently, the profession’s dire need to diversify goes unaddressed, perpetuating the lack of representation and inclusion for broad swathes of the public.
Reasons for and for not lowering the cut scores
The reasons that the legal profession has chosen not to lower bar exam cut scores do it little credit. Legal regulators typically defend cut scores as measures of minimum competence, disparate racial impacts notwithstanding. But the bar exam has never been job validated, and fails to meet the substantive antidiscrimination standards imposed on most employment tests. This anomaly leads some critics to suggest that racism and anti-competition are the true drivers of heightened cut scores. More is expected from the profession entrusted with the rules for reducing discrimination, promoting equity, and ensuring fairness. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed to weed out unethical people. Even if it accidentally predicted discipline, it could be inappropriate to use it for that purpose. And either way, use of the exam distracts attention from more effective, less discriminatory approaches, such as behavioral systems and regulations for practicing lawyers.
What the paper is about
This paper enters this scholarly and regulatory conversation by testing whether lawyers’ bar exam scores predict misconduct. If they do not, it would remove one argument against lowering bar exam cut scores to promote diversity and access to the legal profession. Importantly, the paper’s aim is not to identify the best way to prevent lawyer misconduct; many better alternatives exist. It is instead a paper about bar exams, lawyer discipline, and the fundamental flaws of a particular strategy that limits diversity.
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