Richard Epstein and John Yoo on the Bar Exam

Richard Epstein and John Yoo have responded to Elizabeth Wurtzel’s critique of the bar exam, which I previously commented on here. Surprisingly, Epstein comes to the defense of the bar exam:

There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination. It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law. It is also a mistake to think of the law as a set of senseless rules. The students who fail the bar can’t work with any set of rules. There are virtually no students at the top of the class who don’t pass the bar.

John Yoo disputes Epstein’s position:

[J]ust because Yale doesn’t train practicing lawyers doesn’t mean that a) law schools in general are good at it, or b) that the bar exam has any real relationship to one’s success as a lawyer. Most students no matter where they go, I believe, pay thousands of dollars after graduation to attend cram courses to prepare for the bar exam. Only a hardy (or foolhardy) few, I bet, dare take the bar based on what they learned in school….

[The bar exam] has little to do with whether someone will make a good lawyer. I knew someone in law school with a photographic memory — he could recite exactly the text of a case after reading it once (or, more importantly, the pages from a cliff notes summary of the case). But he couldn’t adapt that memorized rule to a new set of facts, which is what law practice will require; his mind didn’t work that way. So even if Liz Wurtzel failed the bar exam, I bet it has little predictive value for her lawyer skills.

This is one of those rare instances where I agree more with Yoo than with Epstein. It is simply not true that “students who fail the bar can’t work with any set of rules.” The bar exam doesn’t test your ability to “work with rules” in any serious way. Rather, it is primarily a test of memorization skills. To pass, you must memorize thousands of arcane rules, most of which you will never again use as a practicing lawyer. True, the exam sometimes makes you apply the rules to very simple fact patterns. But I suspect that most of those who fail the bar did so not because they couldn’t apply rules they knew, but because they simply couldn’t remember what some of the rules were. As I pointed out in this post, most successful practicing lawyers could not pass the bar if forced to take it again without spending many hours studying.

Many people who aren’t good at memorization can still work with rules effectively in law practice. And, as Yoo notes, some people who pass the exam easily because they are excellent memorizers will turn out to be poor lawyers. Epstein may be right that “[t]here are virtually no students at the top of the class who don’t pass the bar.” But many students from the middle or bottom of the class do fail, and many of them could still have been reasonably competent lawyers, even if they are poor memorizers.

It is also worth noting that law is a profession with a great deal of specialization. Few if any lawyers ever deal with more than a fraction of the many subjects covered on the bar exam. A person who lacks the memorization skills or the patience to learn by heart thousands of rules across many areas of law can still master a specific area of law well enough to give good legal advice in that field.

Finally, I should perhaps mention that I passed the bar with little difficulty, without taking a prep course. That was in part because I’m very good at memorization. But I soon saw that my skill at memorizing large numbers of legal rules wasn’t especially useful either in my work as a law professor or in the various pro bono and consulting projects I did in practice. It did help somewhat, but only very modestly. As a practical matter, modern technology makes it easy to look up any relevant arcane rules I may have forgotten. And it would be foolish to rely on memory alone anyway, since there’s always a small chance that I remembered something incorrectly. Being a good memorizer did little to make me a good lawyer. Conversely, bad memorizers aren’t necessarily bad lawyers.

A test of memorization skills is therefore a poor way to weed out the wheat from the chaff among would-be lawyers. It’s certainly not likely to be nearly as effective as market competition. In the unlikely event that passing the bar really were a strong predictor of legal competence, there would be no reason for government to mandate it. Consumers of legal services would demand it anyway, or at least pay a premium for lawyers who have that credential relative to those who don’t.