By Keith Swisher
This Article exposes several rather startling characteristics of
the “good moral character” requirement for bar applicants.
The requirement arose in part from the bar's desire to exclude
competition, particularly competition from certain nationalities
and racial groups. It later was expanded to exclude the
morally unorthodox (e.g., communists, cohabiters, or felons).
Presently, and importantly, despite rhetoric about flexibility and
forgiveness, the requirement is applied rigidly and even
disingenuously to many applicants with criminal records. The
Article finds a marked increase in the exclusion of applicants with
criminal records, despite also finding that their criminal conduct
occurred (on average) nearly a decade before their bar
applications. The Article then illustrates that the bar's
application of its “flexible” standard for admittance is both
perverse and unrealistic; it is not only unfair to applicants, but
it is unprecedented in psychology and moral philosophy. The
Article concludes that these exclusionary practices result almost
solely from the bar's concerns with its reputation and
(misconceived) self-image. Finding that justification
shallow, the Article offers some compromise positions for bar
committees, courts, and law schools to employ in their screening
processes.