Outsourcing Self-Regulation

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Such resistance allows lawyers the functional independence to challenge laws, policies, and practices in service to the public and the profession. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of private corporate interests. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense of those seeking entry. The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. Outsourced self-regulation is a costly and potentially dangerous phenomenon that has left a vulnerable component of our society without remedy to redress harms suffered through the regulatory process and has deprived the public of the procedural protections of transparent governance. This article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing a judicial regulatory function that is essential to the goals of self-regulation. This article ultimately questions whether the legal profession has lost, or will soon lose, the ability to regulate itself