Fourteen years ago this July, I crowded into a gymnasium in Roanoke along with hundreds of other newly minted J.D.s, waiting to take the exam that would determine whether we would be allowed to practice law in the Commonwealth of Virginia. But in the midst of the COVID-19 pandemic, it looks certain that this year’s crop of law-school graduates will be skipping this rite of passage, at least temporarily.
Though the bar exam is traditionally administered in July, the National Conference of Bar Examiners has already scheduled alternative dates for the fall. Meanwhile, a growing number of state bars have declared that they will permit new grads to practice law under the supervision of a licensed attorney until the bar exam can be offered again. Other states are considering waiving the exam requirement entirely for people who complete a term of supervised practice.
All of which raises the question: Was the exam necessary in the first place? In an era of specialization, few lawyers will ever use more than a tiny fraction of the material covered on the bar exam. But, for state bar associations, the exams are a useful way to hold down the number of lawyers.
As the nation’s economy and health-care system struggle to adjust to the pandemic, more and more states are reexamining some of their oldest occupational and business regulations—rules that, although couched as protecting consumers, do far more to limit competition. And for those of us who have long questioned the supposed benefits of these policies, their erosion is welcome, even if the pandemic that caused it is not.
Besides these major changes, states have also begun enacting more modest, but no less welcome, changes to regulations that needlessly stand between doctors and the patients who might benefit from their services. Illinois has waived licensure fees for retired medical practitioners who wish to resume practice. Oklahoma and Massachusetts have eliminated restrictions that required doctors to have a preexisting doctor-patient relationship before they could offer telemedicine services. And Florida—no doubt recognizing the stress we’re all under—has waived the requirement of a physical examination before a doctor may issue a certification for the medical use of marijuana.
But occupational licenses aren’t the only long-established health-care regulations being reconsidered. Also being reexamined are state certificate-of-need, or CON, laws. A product of 1970s-era economic regulation, CON laws require health-care providers to prove that new services are “needed” before they may purchase certain large equipment, open new or expanded facilities, or—as is crucial now—offer home health-care services. Often, these laws give an effective veto power to existing medical providers, allowing them to torpedo new competition for their own benefit.
While these changes are all welcome, how they are enacted is as important as their substance. In times of panic, the natural tendency is for government power to expand, and some states have already enacted laws giving state governors near-dictatorial power to waive or suspend legal requirements. But history teaches all too well that such expansions of power are rarely reversed when the crisis that precipitated them abates. So although our current situation requires rapid action, it is both better and safer to make changes through ordinary legislative and rule-making processes.