Elizabeth Wurtzel’s Case for Abolishing the Bar Exam

At the Brennan Center for Justice, Elizabeth Wurtzel makes the case for abolishing the bar exam:

In 2005, Kathleen Sullivan, then dean of Stanford Law School, took and failed the California bar exam. After many years in legal academia—Ms. Sullivan literally wrote the book on constitutional law—she was going to practice law and needed a license. Ms. Sullivan has since passed the bar and is a very successful appellate attorney…. If the bar exam was meant to be more than an empty and painful ritual, if the American Bar Association was anything more than an absurd and fusty guild, when Kathleen Sullivan failed the bar, bar administrators might have used Sullivan’s failure to pass the test as the occasion to ask whether, perhaps, something is wrong with the exam and process of bar admission. After all, if the results of the bar exam were meant to matter—if it were meant to predict the likelihood of success as a lawyer—the failure of a great legal mind ought to alarm the people in charge….

But nothing changed.

And there’s a long, proud tradition of gifted attorneys who failed the bar, at least on their first try. Hillary Clinton, Michelle Obama, Franklin D. Roosevelt, Jerry Brown—who is now California’s attorney general—all screwed up once, as I discovered when I myself failed. Both Pete Wilson, the former governor of California, and Antonio Villaraigosa, the current mayor of Los Angeles, took the bar four times; Benjamin Cardozo, one of the greatest justices of the Supreme Court, sat for it six times. Harold Ford Jr. still has not managed to pass the bar in Tennessee—a State in which the curve cannot be terribly dangerous—but that didn’t keep him out of Congress, though he’s been less lucky with the Senate.

Given this simple data point—that many gifted people fail the bar exam while plenty of plucky idiots who you wouldn’t trust to haggle over a parking ticket in White Plains traffic court get through the test with the greatest of ease—it is curious that it endures.

I agree with Wurtzel’s point that the bar exam is primarily a test of memorization that covers huge amounts of material most lawyers won’t need. For this reason, among others, I’m all in favor of abolishing the bar exam myself. If we retain the exam, it at the very least should not be administered by bar associations, which have a vested interest in reducing the number of lawyers so as to increase the demand for their members’ services.

I’m not sure, however, that I agree with all of Wurtzel’s argument. Most of the “gifted people” she mentions had their greatest successes as politicians, not lawyers. It’s perfectly possible to be a great politician while also being a poor lawyer. Moreover, it’s hard to evaluate a system that tests thousands of applicants on the basis of a few individual cases that could be atypical.

I also disagree with Wurtzel’s view that government needs to adopt various policies to reduce the number of lawyers (which of course is the main real function of bar exams):

There are many better ways that the ABA could keep the numbers down in the profession: for instance, while there are only 130 accredited medical schools, there are nearly 250 law schools that have been approved by either the ABA or a state equivalent….. And there are many more students in a law school than a medical school, given the lack of need for cadavers and the like: for instance, the entering class at Harvard Medical School has 165 slots, whereas the 1L class at Harvard Law School contains 550 people. Plainly, the population of legal academia is excessive.

I see no reason why the number of medical schools should have any bearing on the number of law schools, especially since the former is also artificially restricted by regulation. These are two different professions that face different market conditions. More importantly, I think that the high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many, and that the best way to determine the “right” number of lawyers is through market competition, not government mandate. To that end, I would abolish ABA accreditation of law schools as well as the bar exam. As law school faculty and administrators who have gone through the ABA accreditation process know, many of the ABA’s requirements add nothing to the quality of legal education, and are just as ridiculous as the more arcane questions on the bar exam.

Both the ABA and state bar associations have strong incentives to regulate the profession in ways that reduce competition for their members rather than benefit consumers of legal services. If we must have government-mandated accreditation and licensing (which I doubt), it should at least be conducted by independent agencies insulated as much as possible from lobbying by the organized bar. Giving lawyers the power to exclude potential new members of their profession is much like giving Ford and GM the power to exclude new car manufacturers from the market.