When Elizabeth Wurtzel argued that the bar exam should be abolished, I took it as the typical post-exam angst coupled with just a bit of sour grapes over her first-attempt failure to pass. Then Ilya Somin took up the call at Volokh Conspiracy, and the issue turned into a real debate. Richard Epstein jumped in to support the bar exam. John Yoo against it.
Up to this point, the various voices offered legitimate complaints about the bar exam, that it’s a failed predictor of success as a lawyer and little more than an exercise in memorization and test taking tricks. It was argued that it remained as a rite of passage whose purpose was to exclude people from admission, to limit the number of lawyers and a manifestation of guild protectionism.
Underlying Ilya Somin’s view that the bar exam should be abolished was his belief that we need more lawyers, not fewer, to reduce the cost of legal services. He similarly asserted that ABA control over accreditation of law schools be abolished as another guild control mechanism.
One glaring gap in Somin’s view stood out. Does this mean that anybody who wants to be a lawyer gets to be a lawyer? Does this mean that we leave it to law schools, run by lawprofs, to decide who becomes a lawyer, and how many lawyers society should endure?
Maybe this debate has a chance of being re-connected with reality, as much of it bears little relation to the nuts and bolts.
The bar exam is not a good predictor of success as a lawyer. But is that really its purpose? The bar exam is merely a test of the absolute minimum scope of knowledge that someone entitled to hold themselves out to the public as a lawyer is required to possess. And it’s an awfully low bar. Sorry, Liz, but it’s just not that hard to pass.
Lawyers are licensed as generalists. Once a lawyer, a person can take on any client, whether for litigation, civil or criminal, or transactional, or anything in between. Despite the complaints that the bar exam tests lawyers in areas of law that they will never practice, the point remains that they are entitled to practice in any area of law, and hence should possess the barest minimum amount of knowledge about it. The public assumes that the lawyer must have at least a bit of a clue, and rightfully so. Why is it that lawyers and lawprofs find this too burdensome?
Then there’s the affectation of the elitists, that lawyers make too much money, reflecting a dearth of lawyers to serve society. Very few get the Biglaw bonus check, while most toil pretty darn hard to make ends meet. Maybe that can’t be seen from the Ivory Tower, but it’s clear from the trench view. I strongly (vehemently, perhaps) believe that we have an absurd excess of lawyers in this country and need desperately to cull the herd. Somin thinks the opposite. While I understand the supply/demand point he makes, I cannot comprehend how dilution of competency serves the interest of society.
So in the absence of a bar exam, what would qualify a person to be a lawyer? Graduation from law school would appear to be Somin’s answer. Great. This would be completion of the very same legal education that practitioners have been arguing does little to nothing to prepare a person to practice law. Does a course in “Due Process and the Ministry of Magic” equip a lawyer to represent a client? Does the overt coddling, grade-inflation and concern for the emotional well-being of the next generation of lawyers safeguard clients from the death penalty? A heartfelt “sorry” as they push the plunger isn’t quite what Strickland had in mind.
Enter fellow New York criminal defense lawyer, Nathaniel Burney to the argument.
Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer. It doesn’t test judgment, reasoning or understanding. More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.
Absolutely true. Nathaniel urges an alternative:
Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine. You want to practice criminal law? Someone’s life and liberty is going to be on the line. You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom. Or you say you want to be a transactional lawyer? People’s assets and livelihoods will be at stake. You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.
It’s a sound idea, but doesn’t quite cover the situation. First of all, outside of urban areas, lawyers tend to be general practitioners of necessity. They simply don’t have the clientele demands that give rise to the degree of specialization that is the urban norm. This leaves the handful of lawyers in a rural county in a pickle, and the handful of clients they serve unrepresented.
Moreover, there’s a gap between law school and specialized competency that remains. Lawyers don’t spring from law school capable of trying a case. They need to learn. They need to gain experience. This plan offers no opportunity for that to happen. If the idea is that law school graduates have to apprentice until they can pass a competency exam, they are then at the mercy of getting jobs, competent masters to serve, Would lawyers be required to serve as teachers of these newbies? Where would the money come from to pay for these apprentices, since they wouldn’t be capable of earning their own keep, even assuming the lawyer had the business to sustain them.
It’s not that I disagree that the bar exam serves its function poorly at best, but abolishing it would make a bad situation worse. To the extent that it serves as an incredibly low barrier to entry, at least it affords the public the most minimal protection against complete ignorance. Adding to it certification in a speciality would go a long way toward providing the public with a more meaningful demonstration of qualifications. Competence is a good thing.
Finally, Somin argues that certification, left in the hands of lawyers, will produce more of the guild protectionism that he finds objectionable. So which fine group of non-lawyers should be tasked to judge competence? That’s unclear. Hard as I try, I can’t imagine any way to judge competence that doesn’t begin with a decision-maker who already possesses competence.
To a large extent, the argument is normative, a relative weighing of priorities. My priority is professionalism and competence in the practice of law, as opposed to easy and cheap access to people of dubious competence. If there’s way to ascertain minimum knowledge before siccing the new lawyer on society, I’m all ears. Just don’t tell me to trust the lawprofs. That’s a non-starter.
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Good point about the general practitioner and the novice lawyer. Perhaps there is an analog to the medical profession, where such certifications come later after one has gotten practical experience in an internship or whatever they call it. Or a more guild-like setup where one has a few apprentice years with a firm or agency before seeking certification.
This is all wishful thinking, I know. Getting the members of the bar to impose something like this on themselves is not likely to happen any time soon, if ever.
I thought your points were very well taken, and in the course of the debate, far more effective and realistic than simply abolishing the bar. The logistics of change obviously requires a lot more thought and discussion, but the whole abolish the bar exam begs the obvious question: If not the bar, then what?
I am a big believer in mandating that the 3rd year of law school be one of practical experience. I truly believe that new lawyers would be better served if they had a year of practical experience under their belt prior to graduating. 3rd year courses such as “Philosophy and Law” are nice filler courses but do they really prepare you for the real world? I think we all know the answer to that.
I think all practitioners believe this. The problem seems to be that law schools think that they teach theory and it’s up to lawyers to teach law students/new lawyers how to practice law.
Perhaps you should consider the sort of system we have here in England and Wales, which requires a degree in law, followed by a one-year vocational training course teaching the skills needed to practice as a barrister or solicitor, followed by a one-year “pupillage” for barristers or a two-year “training contract” for solicitors – in both cases effectively an apprenticeship – before they are allowed to practice.
Not only do I think pupillage is a much better system, but I also think the distinction between barrister and solicitor would greatly improve the competence of the US bar. And I really like wearing bands, which solves the whole “does this tie match” dilemma.
The California bar is pretty tough. I read Ilya’s piece and the comments, and I think Ilya and many others give too little credit to memorization skills – especially for trial lawyers and judges. I’ve seen many cases muffed by the lawyer failing to remember something in an earlier hearing by the witness on the stand at trial and letting an important point go by the wayside.
One judge I know has possibly a clinicaly impaired memory, though he is only about 42, and he’d a slackwazee on top of it. And, he’s arrogant. A real trifecta for courtroom tragedy. He’ll say, “I don’t recall X,” and he fails to consider that X may well have happened earlier in the case and he just can’t remember. So if he doesn’t remember, he treats it as not happening, he doesn’t look back at the record, and most of the time doesn’t give counsel the chance to show X did happen.
Memorization achievment is also often a surrogate for hard work and diligence. Ilya noted he had a really good memory. Most of us are not naturally great, and have to work to gain the knowledge, just like you have to be diligent to be successful as a lawyer. I think the profs are not out in the real world and don’t see the moronic slackers that populate a great deal of the ranks.
A professor at university told me that this is an historical remnant of the introduction of law schools (as opposed to studying classics, philosophy and learning law by doing it) as a way not to tread on practitioners’ toes by teaching how to practice it. You’d think, if it’s really just a quirk from when law schools were starting out, it should be pretty easy to fix.
Well not to echo too much the sentiment already expressed, but I think the reference to the medical profession is probably spot on. There should be practical training (not voluntary clinics and moot court) as a prerequisite to becoming a member of the bar. I have no issue with the test itself. Of course it is exactly what everyone says it is and has no bearing on your ability as an attorney, but at the very least it is a barrier that preserves the professions integrity. My issue in these matters is actually state specific bars. No matter how different each state’s laws may be, neither law school nor the state specific bar exams doing anything to validate that a successful exam taker is better equipped to deal with that states laws than an attorney from another state. In law school, we learn “how to be lawyer”, “how to think like a lawyer” (or so they have told us). The application of critical legal thinking is the same no matter what state you are practicing. Inevitably, you will have to research and become knowledge of your subject post bar acceptance, by applying your training. State bars could continue their associations with fee based membership, national bar passage, and CLE requirements. To me, the combination of at least 1 year of required practical/intern experience and a national board/bar exam would be the best solution to all of these concerns.
Thanks for the nice summary of the current debate.
wre