One of the great differences between progressives and libertarians is that progressives favor economic regulation and libertarians oppose it. As a constitutional matter, it has long been settled that economic regulation is ordinarily not subject to any serious due process objection. One of the disquieting developments of recent years has been the misuse of the First Amendment to disrupt economic regulations involving speech.
Many years ago, Kenneth Karst, one of the great progressive scholars of his generation, argued that some economic regulations involved important human rights that deserved to be subject to serious scrutiny under the due process clause. He had in mind the right to pursue an occupation, and he objected in particular to unnecessarily burdensome occupational licensing requirements.
To my mind, the California Bar examination is an outstanding example of an excessively burdensome requirement. It is not just that fewer than half of the applicants passed the examination this past summer. The Bar likes to claim that its low passage rate is caused by the number of applicants from unaccredited schools. The fact, however, is that the California bar is graded more strictly than the overwhelming majority of states in the nation. Only Delaware is as strict if not stricter. See here.
I once participated in a debate before the California Board of Bar Governors. I was then the Chair of the Admissions Committee of the UCLA Law School. UCLA then had the largest affirmative action program in the United States. I observed that the examination had a disproportionate impact on people of color. In the summer before the debate in which I participated, 40% of Latinos had passed the bar in California. But, given their scores on the multistate exam (and the essay exams were scaled to match the multistate), if the same group of people had taken the exam in New York or Pennsylvania or the District of Columbia, more than 80% would have passed the exam! I didn’t see why our qualified students should be screened out of California.
This would have been acceptable if California could justify the stringency of its screening device. But it cannot do so. The use of written tests by employers to determine employment at the time (I don’t think this has changed) was impermissible unless the tests met certain validation requirements. The Bar is not governed by these standards, but it is telling that if it were, it could not come close to meeting them. Put simply, there is no evidence that attorneys in Los Angeles or San Francisco are better than those in New York, Philadelphia, or D.C.
My opponent in the debate was the Chairman of the California Board of Bar Examiners. It turned out not to be a debate because to my surprise he agreed with me. This left the ball in the hands of the members of the Board of Bar Governors. I think their sentiment was captured by the public member of the Board – a Mercedes dealer. He said: “Professor Shiffrin, I can see how [bringing the bar exam in line with other states] could lower prices for consumers. But California is a sun state, and I want to assure that lawyers make a decent living.” In other words, the exam is calculated to protect the guild, limit competition, and has the effect of excluding hardworking young people of all races and ethnic backgrounds from practicing law. Law is not just an occupation. It is a license to fight for justice. It is a moral outrage that the Bar uses its monopoly for protectionism. I think Kenneth Karst was right about the right to pursue an occupation. That right is a human right and it should be given greater respect in our Constitution.