A law school graduate walked into a bar, looking terribly depressed.

“What’s the matter,” asked the bartender?

“I just found out I failed the bar exam,” the grad said.

“Aw, don’t give up,” the bartender responded. “Study hard and I’m sure you will pass next time.”

“What? No free drink?,” the grad replied.

The argument that the bar exam fails to serve as an adequate test of competence to practice law has been around a long time, and for a variety of reasons, has some merit.  It’s been extended in the past few years to why a bar exam is justified for each state, preventing lawyers from moving their practice to new places without being required to re-take the exam. This has been exacerbated by the internet, where a lawyer could theoretically represent people anywhere, as long as they have a computer. And who doesn’t?

While the bar exam may be a mediocre barrier to entry, the absence of a bar exam is an invitation to disaster. It may not test much, but it tests basic knowledge and reasoning necessary to call oneself a lawyer. And as long as states get to enact their own, sometimes peculiar, laws, the justification for their ascertaining whether a person should be entitled to assume responsibility for other people’s lives and fortunes remains intact.

Most importantly, the bar exam isn’t that hard. Stressful? Sure. Requiring preparation and study? You bet. But take a look at some of the people who passed it, and you can’t help but wonder how low a bar it must be.  Still, the results of the July, 2014 bar exam were abysmal, with passing rates plunging into the toilet.

The head of the National Conference of Bar Examiners, responsible for the preparation and grading of a large part of the exam, after determining that the failure wasn’t a glitch on their end, offered this explanation.

The group that sat in July 2014 was less able than the group that sat in July 2013.

That is the charitable way of saying, your students came to the law school with heads full of mush, and remained that way until failing the bar exam.  They are, according to Ellen Moeser, NCBE head, too stupid to pass.

There are some explanations why this is so. One is that the universe from which law schools draw their students was once made of smart students who wanted to become lawyers. The smart students have since moved to more lucrative careers, leaving the pool, well, less smart. And since law schools have to fill seats or die, they’ve been admitting students of lesser intelligence for a while now to survive.  If you can write your name on the LSAT, there’s a law school that will take you.

Then there has been a pedagogical shift away from the core subjects of law. No longer must all law students take a class in “evidence,” allowing them to opt instead for such subjects as Law & Nietzsche or Harry Potter & Due Process.  Cool as such courses may be, there is no section on the bar exam about Harry Potter.

But law schools, under unbearable pressure to stay alive given their Overlord, U.S News & World Reports, which ranks them as if any jury rules based on a lawyer’s alma mater, felt the sting.

Nick Allard, Brooklyn’s dean, calls Ms. Moeser’s response to his and other deans’ concerns about how the exam was prepared and scored was the “height of arrogance.” 

Brooklyn Law School’s failure rate was a nightmare.  If it wasn’t Moeser’s fault, then it was the schools, raising the question of why it continues to exist and why anyone, even those whose strengths ended at writing their name on the LSAT, would go there.  Allard went for broke:

When fewer people pass the exam, Allard says, poor and working-class Americans suffer in another way: “Most people in America can’t afford lawyers. Most small businesses can’t afford lawyers. The biggest cause of that is that there are too few lawyers being produced.” The bar exam, he says, “perpetuates the status quo in a way that keeps qualified, motivated people from becoming lawyers and deprives most people of affordable legal services.”

Talk about pulling something out of your butt, no matter how absurdly irrational.  Will Allard make the school’s new slogan, “Brooklyn Law, where three years gets you a life of abject poverty!”

You see, nobody goes to law school, paying three years of tuition, losing three years of opportunity, saddling themselves with decades, if not a lifetime, of debt, for the joy of starvation by serving people who can’t afford to pay you.

But Allard’s illogic plays into a trend that seems to blind so many, even those with the putative capacity to think, and may be the only thing still thriving in academia: the blind faith of good causes. That and the fact that lawyers are notoriously bad at math.

Providing affordable legal services to people who don’t see lawyers as a worthwhile expense of their meager savings has become a touchstone of excuses  It swells the hearts of the passionate and progressive, despite the internal contradiction. Lawyers, some anyway, really do want to help people, if only they can manage to pull it off without depriving their own children of dinner and the occasional new pair of shoes.

But they can neither earn a living nor show their pro bono largesse to the miserly if they can’t pass the bar exam. And regardless of how imperfect a proxy the bar exam may be, the inability to pass it, at least by the second try, is frankly inexcusable.  That a law school gave its students diplomas, and still they can’t surmount this minimal bar, is inexcusable.

The finger pointing deflection of blame isn’t going to change the fact of failure. Each law school grad, lawyer, prawf, bar examiner, will pick the reason that most relieves them of responsibility. There has been tons of talk over the past few years about reinventing law school, and a few failed tweaks have been tried to great hoopla and no avail.

None of these reasons are mutually exclusive. It could be some, all or a mix no one anticipates but defies scrutiny because there is no one interested enough to defend their honor. But the bottom line is that we have a future of potential lawyers less capable of representing clients, and a gaggle of pedagogues spewing irrational nonsense, talking their enlightened self-interest to death, and solving nothing.  That’s surely going to help those who don’t want to spend money on lawyers obtain “justice.”