Every once on a while, the same old argument arises to do away with the bar exam because it’s a poor test of the skills needed to practice law and it reduces the number of lawyers, thereby increasing the cost of representation and leaves many without access to representation. This time, Ilya Somin at VC has latched onto a study that appeared in an ABA Journal article to pursue his belief in deregulation of the legal profession.
An important new study by Washington University (St. Louis) legal scholar Kyle Rozema finds that bar exam requirements massively reduce the number of lawyers. While some might cheer that result, the main effect is to increase the cost and reduce the availability of legal services. Lack of access to affordable legal representation is a serious problem in our legal system, particularly for the poor and lower middle class.
Why this study is important is left unsaid, though any study that supports a position one holds tends to be “important.” But this new argument against the bar exam, which has been addressed here already, brings a new issue to the fore. Without the bar exam, graduation from law school would be sufficient for admission to the bar without any further check.
Back in 2015, bar exam passage rates started to plummet. There were three obvious causes for this. First, the bar exam had gotten so much harder that far fewer students were capable of passing. Second, law schools were failing to adequately teach students. Third, law schools were admitting too many unqualified students into law school. Guess which one students and lawprofs chose to believe?
The situation has continued to devolve since then. The knee-jerk DEI obsession has exploded, rationalizing the admission of low LSAT students to achieve the correct rainbow mix as if empathy and equity was all that was needed to be a competent lawyer. On top of this, law schools have made the deliberate decision to water down the curriculum from what the law is and how lawyers think to what they feel the law should be and what makes law students feel good about themselves. The Socratic method has been replaced by the compliment sandwich. Basics like Evidence are no longer required, replaced by Law and Cultural Grievance.
It would be nice if it could be argued that prawfs were caught in the middle of this debacle of intellectual failure, but they are not only in favor of it, but a significant cause of it. While denying that they indoctrinate students into ideology, they do exactly that because they are at the forefront of believing that the mission of lawyers is to ride unicorns on rainbows for the good of the oppressed. Whether it benefits the oppressed to turn out lawyers with heads filled with mush is another matter, and one that they will deny vehemently as they impugn the motives of anyone who thinks lawyers should worry less about their feelings and more about their ability to represent their clients.
Without a bar exam, these students would be joining the legal profession with the metaphorical ability to make a Molotov cocktail but not craft a cogent argument against their client being put to death.
The bar exam, among other benefits, is a gatekeeper to prevent the worst indulgences of woke academics to reimagine law school so as to lose what little rigor it still has. If law students can’t pass the bar, which is far more useful as a reflection of general legal knowledge than either prawfs or law students appreciate, the problem isn’t the bar exam. The problem is that law schools are turning out inadequate students.
This position, of course, will outrage law students and young lawyers, all of whom are certain they are far above average while older, experienced lawyers are all far below. And the irony is that reducing the cost of lawyers might be convenient for some, these are the same lawyers who cry about their poverty, their student loans and their inability to buy a house, as they sit in Starbucks holding their daily $5 frappucino.
Does it occur to them that if unqualified lawyers flood the market and drive legal fees into the gutter, it’s not going to help their dream of buying a Tesla? Nor does it benefit clients to pay less to receive unqualified legal representation. Granted, passing the bar exam is no assurance of zealous representation, but that is an argument for making the bar exam far harder, not getting rid of it.
This is yet another example of the syllogism,* with a simplistic and counterproductive “fix” that will neither help lawyers nor clients. It’s not that there aren’t problems. It’s that this isn’t the answer. And frankly, if the legal academy wants to do something to help both their students and those who who lack access to justice, they might start by returning to the methods that turned minds filled with mush into lawyers. And keeping a roll of dimes in their pocket.
*The syllogism:
Something must be done.
This is something.
This must be done.
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In other contexts, I’ve often wondered how it’s possible that profs like Mary Anne Franks and Michelle Dauber could possibly competently teach law, given their bizarre beliefs. And yet, they do. No, I would not want a Franks crim law student able to practice law upon graduation without any demonstration that she hasn’t rendered them dangerous to the law and their clients.
While Franks and Dauber are extreme examples, I fear that it’s become the norm.
Do they competently teach law?
Do they? Can they? Can they teach law within incorporating their personal idiosyncratic spin? Will their students realize they’re not being taught what law is, but what these prawfs feel it ought to be?
When academics are so bizarrely removed from the law outside the classroom, there is good reason to believe they are no different inside.
What’s the point in being taught criminal law or evidence by someone like Dauber, who will immediately follow up every case with something along the lines of, “and of course rules of evidence are just nonsense made up by entitled white males so that they can justify raping women”? The worst class I took in law school was civil procedure, because the professor was a cynic who, while not ideological, chalked up every decision to the judge’s/ justice’s individual whim based on how they felt that day. It’s just demoralizing to learn from someone who hates and openly mocks what they are teaching you.
I don’t see why someone should be a law professor if they don’t believe in any principles of the law or the Constitution, whether because of ideology or because of cynicism. Maybe if you can keep it to yourself really well, but it’s hard not to see that kind of contempt leaking through somehow.
One can’t argue that the bar exam doesn’t act as a barrier to entry to the legal profession, but it exists for a damn good reason. The only thing that protected the state of North Carolina from a horde of wholly unqualified lawyers from the Charlotte School of Law was the bar exam.
I support the opposite plan: Allow anyone who passes the bar exam, regardless of whether they are in hock to some school and have a fancy degree on their wall, to practice law, in all 50 states.
Lots of people feel as you do, until they need a lawyer.
I’m all for weeding out the incompetent. Does the Bar exam help to do that? Is there a meaningful correlation between passing the bar exam and ability to practice law competently (or willingness actually to commit to doing so).
Though I’m generally agnostic about it, I suspect the answer to the former depends on the particulars of the exam, and those particulars of course vary from state to state. The answer to the parenthetical latter is, sadly I think, a resounding “No.”
If you look at it from the other side, whether the public would be better off with lawyers who were incapable of passing the bar, you get a different answer.
The bar’s not that hard, and learning the breadth of law has come in handy for me in a thousand ways. Correlation could likely be improved, but eliminating the bar isn’t going to make the exam any better.
Knowing the law and breadth of the law in necessary but it’s also important that law schools teach how to think like a lawyer (corny as that may sound). It does no good to write a brief that argues to how Dauber thinks if the judge thinks like Kingsfield.
The American Bar Association says there are about 1.5 million lawyers in the U.S.A. That’s about one for every 223 people. The Bureau of Labor Statistics says there are about 469,000 plumbers in the U.S.A. That’s about one for every 714 people. I won’t presume to know what these statistics mean.
After repairing my pipes, the plumber told me his fee. I responded, “that’s outrageous. As a lawyer, I don’t make that much.
The plumber looks me in the eye and says, “neither did I when I practiced law.”
In response to the assertion that in 2015, “First, the bar exam had gotten so much harder that far fewer students were capable of passing.”
I took the NY and NJ bar exams in 2008. I took the bar exam this year in Texas. I found out the day before the test I had studied the wrong material (Texas has switched to the Uniform Bar Exam; it used to use Texas law). I passed with a comfortable margin.
My test-taking ability has not improved with 14 years of atrophy. The bar exam is not getting harder.
I agree but the trends are the other direction. I have a friend who adjuncts teaching post conviction relief. His students get to do appellate oral arguments (and win). On a good day His law school treats him like a red headed step child
If anything, the existing process fails to block enough of the people who never should be lawyers. Nothing in the law schools or exams does anything to root out lawyers who utterly lack any sense of fiduciary responsibility. If we remove all the existing entry barriers, we will only see more and more of them.
Hordes of unprepared and incompetent opposing counsel. What’s not to like for me and my clients?
Until judges have to begin making “reasonable accommodations,” of course.
More seriously, it’s just another example of the “dumbsizing” of the nation. I’m just thankful I’m old enough that I probably won’t be around to see the final results.
[FN1] – Absolutely love the plumber anecdote!
[FN2] – I would sign up for a “Law and Cultural Grievance” class or CLE, just for the giggle factor. Probably wouldn’t get very far before being tossed, but the short time there would be totally worth it!