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.
JJ says:
In order to become a lawyer, you have to jump through a number of discrete hoops, none of which relates all that much to the others and none of which has much of anything to do with the practice of law: 1. obtain an undergraduate degree; 2. take the LSAT; 3. complete law school; 4. pass the bar. These are nothing more or less than barriers to entry to keep our numbers low(er) and our salaries high(er). If the concern was to produce quality lawyers, we could do just as well (better?) reinstating the apprenticeship model.
July 14, 2010, 4:15 pmDilan Esper says:
Actually, the fact that Yoo passed the bar exam probably indicts it as much as anything.
July 14, 2010, 4:20 pmHouston Lawyer says:
There are many things I learned in law school and from Bar Bri that bounce around in the back of my mind. Every once in a while, I have to spontaneously dig them out when a client raises an issue far afield of my usual practice. So I don’t regret the stuff I was forced to learn.
It seems to me that those who are opposed to the bar exam should also be opposed to any type of licensing predicated on prior knowledge. A lot of people who couldn’t get into medical school would have made fine doctors.
July 14, 2010, 4:26 pmstashy says:
Bar exams wouldn’t be necessary if law schools bothered to take their gate-keeping responsibilities more seriously. As things stand now, students almost never flunk out (their tuitions are too valuable to the university), and I can not accept the smug assumption that simply because a law school accepts a student at the front end that the student is ipso facto entitled to a law license on the back end. C’mon you law teachers out there, be honest. How many of you have ever flunked a student? I’m talking F, not C+. Anybody? Ever?
July 14, 2010, 4:26 pmHans Bader says:
The bar exam should be kept. What should be abolished is the costly and harmful requirement that lawyers have attended law school.
I explain why here.
July 14, 2010, 4:28 pmLibertarian1 says:
IANAL As a physician I am required, as a condition for re-licensure, to take 50 hours/year of Continuing Medical Education courses. In addition every ten years we must retake our board specialty exams. Is there a similar requirement for attorneys? Most of us dislike the added stress but it helps to insure continued competency.
July 14, 2010, 4:29 pmIlya Somin says:
As things stand now, students almost never flunk out (their tuitions are too valuable to the university),
Actually, many law schools do flunk numerous students, especially schools in the bottom half of the rankings.
July 14, 2010, 4:30 pmHans Bader says:
I learned next to nothing useful in law school, but I did learn useful stuff after graduation while studying for the bar exam.
July 14, 2010, 4:30 pmIlya Somin says:
It seems to me that those who are opposed to the bar exam should also be opposed to any type of licensing predicated on prior knowledge.
Not necessarily. It depends on whether knowledge is actually relevant to the work you are doing or not. That said, I do in fact oppose government-mandated licensing in other fields as well.
July 14, 2010, 4:31 pmGreg says:
Epstein (somewhat in jest) ripped on YLS several times in a debate with Jed Rubenfeld. Video of the Federalist society event can be seen here:
http://www.youtube.com/watch?v=eyzkZebrClc&feature=related
The video’s great because you get to watch Epstein absolutely mop the floor with Rubenfeld – to the point where Rubenfeld (I think) gets upset.
July 14, 2010, 4:33 pmHans Bader says:
Yale Law School isn’t the only the law school that doesn’t produce as much value as student pay in tuition.
My years at Harvard Law School were fun, but educationally almost useless.
Most law schools are money-wasting white elephants.
July 14, 2010, 4:39 pmMark Field says:
It certainly indicts the ethics exam.
July 14, 2010, 4:40 pmwm13 says:
Transactional lawyers like me are generally required to have (i) a broad (but shallow) knowledge of the law, so that you can spot issues (like the possibility of an instrument being a security under federal securities law, or an action being ultra vires, or an agreement implicating the Statute of Frauds, etc.), combined with (ii) a deep knowledge, both legal and practical, of the particular field in which you work (e.g., corporate finance, or mortgage lending, or whatever). If you took a good set of commercially oriented courses in law school (I didn’t, particularly), then you have item (i) when you graduate. If not, studying for the bar is a good way to fill in some of the lacunae in your knowledge.
It’s good if an associate can start with item (i), so we can start right off teaching them item (ii). It’s sort of a cliche that Yale law grads tend to be deficient in this regard, and, if they want to do transactional work, you have to send them to some seminars on Bankruptcy 101, Secured Transactions, etc.
July 14, 2010, 4:40 pmalkali says:
In the unlikely event that passing the bar really is a strong predictor of legal competence …
Here is the thing: I don’t think Prof. Somin genuinely believes that there are lots of people who would be competent lawyers but are prevented from practicing because they are unable to pass the bar. I think he privately believes — as I do — that anyone who can’t pass the bar by the second or third attempt is not very good at the memory and symbolic reasoning skills that are requisites of legal practice, and should pursue some other type of employment. Absent that concession, it’s hard for me to take his argument seriously.
July 14, 2010, 4:41 pmIlya Somin says:
I don’t think Prof. Somin genuinely believes that there are lots of people who would be competent lawyers but are prevented from practicing because they are unable to pass the bar. I think he privately believes — as I do — that anyone who can’t pass the bar by the second or third attempt is not very good at the memory and symbolic reasoning skills that are requisites of legal practice
I do indeed believe that anyone who fails 2 or 3 times is probably bad at memorization, though not necessarily symbolic reasoning. But for the reasons I stated in the post, a person who is bad at memorization can still be a competent lawyer. If I didn’t believe that, i wouldn’t have written the post.
July 14, 2010, 4:51 pmDilan Esper says:
I would have hoped that Hans Bader might be keeping a lower profile after this embarrassment:
http://www.examiner.com/x-5738-Political-Buzz-Examiner~y2010m7d9-Video-CNBC-host-calls-out-Republican-for-distortion-on-the-Gulf-oil-spill-Jones-Act?cid=exrss-Political-Buzz-Examiner
July 14, 2010, 4:51 pmMe says:
Does the fact that lawyers are officers of the Court affect the analysis any?
July 14, 2010, 4:55 pmyankee says:
What should really be abolished is the costly and harmful requirement that lawyers have a college degree before attending law school. Tuition payments for seven years of education, of which at most two have any relevance to practicing law? Law should be an undergraduate degree like it is in other countries.
Amen!
July 14, 2010, 4:55 pmDavid Welker says:
I agree that the bar exam is not particularly useful. Like Ilya Somin, I took the California Bar exam without taking any courses and passed. Unlike Ilya Somin, memorization is not among my strongest skills (although I am not particularly bad at it); so it was not a fun process.
That said, I am skeptical about the ability of markets to weed out bad lawyers. The reason why is that clients are not necessarily great at identifying good lawyering. I remember when I volunteered at the local prosecutors office when a criminal defendant with fairly well off parents paid quite a bit of money for an attorney who made fairly bad arguments on behalf of the defendant; I am quite sure that they were not getting their money’s worth. But you can’t really necessarily tell how good your lawyer has done in a criminal case based on the results; so how is the market supposed to correct this problem? The lawyer in question, despite not being a great advocate with respect to his written motions or the quality of his arguments, generally presented a very favorable image to the outside world.
Another issue is this. Marketing. I am sure that Ilya Somin, for example, would be an above average lawyer if he were to go into actual full-time practice. But that would not ensure that he would have a successful practice. Perhaps the most critical skill for a lawyer is not good lawyering, but good marketing. Now, of course, at the big firms, you have both very good marketing and very good lawyering; but these firms primarily serve very wealthy clients. I am not worried about the ability of such sophisticated clients (who often employ in-house lawyers in addition to outside counsel) to identify good lawyers. Surely, the bar exam is not very necessary or useful for such clients. But what about more average individuals that do not have such resources at their disposal? I think that in the world that Somin proposes, they would generally have a very hard time (as they do now) determining lawyer quality.
So, I agree that the bar exam doesn’t work very well at filtering out bad lawyers. But that doesn’t mean that markets do a very good job (at least for more average individuals without superior access to resources) at doing it either. As an example, you only have to look at all the lawyers who have been disciplined in California in relation to mortgage modification representation to see that this is true.
So, here is what I would propose. Get rid of the general bar exam. Instead, replace it with a series of specialized bar exams. One can argue that one should not need to know the specifics of community property in California if one is going to work in an entirely different specialization. But, if you are working as a family lawyer in California, you SHOULD know the details about community property. You should even have some of those details memorized. So there probably should be a specialized bar exam in family law and only those who pass that bar are allowed to practice in family law.
I do not think that lawyers would resent studying for such specialized bar exams as much as the general bar exam. After all, they would be focusing on specialized skills that they would find useful in practice. Also, it would increase the marketability of attorney’s looking for jobs or starting their own practices.
July 14, 2010, 4:56 pmMe says:
Professor Somin observes,
“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.”
Is this maybe an argument for adding a practical section to the bar exam, rather than abolishing it?
July 14, 2010, 4:57 pmDavid Welker says:
I think law schools whose students do not pass the bar exam (whether due to being flunked out or not passing it after being passed) should have to give such students a refund for all tuition and fees paid. This would discourage law schools from accepting students that are not likely to benefit and drive scam law schools that are basically stealing money from students who never become lawyers (and never were likely to become lawyers when they were admitted) out of business.
July 14, 2010, 4:59 pmAnderson says:
It’s simple. Memorized answers are easier to grade, and easier to defend against challenges, than more practical tests like issue spotting or a potted memo. That is why the exam is as it is in many states. (MS having fewer testtakers, may be why it has less outright memorization than some.)
July 14, 2010, 5:03 pmAk Mike says:
Let me expand on wm13′s point – you can rarely say when a matter walks in the door exactly what kind of issues it will raise. Nearly every kind of practicing lawyer needs broad (even if shallow) familiarity with other aspects of the law, of the kind tested by the bar examination. Estate lawyers need to be able to spot real estate title issues; commercial lawyers need to see possible criminal environmental or securities issues, divorce lawyers need to know when corporate problems could be present. Maybe law professors don’t need to know anything outside of their areas of specialty, but lawyers who deal with the real problems of clients do.
Although I agree with Prof. Somin that licensing should not be a prerequisite to practice, I do think that passing the bar examination should confer some kind of recognized status, because it signals a base level of competence in recognizing legal issues.
July 14, 2010, 5:03 pmbyomtov says:
I would have hoped that Hans Bader might be keeping a lower profile after this embarrassment:
I see he’s back in the self-linking business.
July 14, 2010, 5:03 pmMe says:
This also is an argument for making law schools that inflate the employment rates of their graduates (as many do) refund tuition:
July 14, 2010, 5:03 pmjab says:
Hilarious… Bader has posted 3 times, with four links to his own blog posts…
July 14, 2010, 5:04 pm4/3 = 1.33… a ratio greater than 1… LOL
But I think that is on the low side for him, isn’t it? LOL
Me says:
This is a thoughtful observation; what are the challenges usually based on, though? Is it something that could be fixed through simple legal changes?
July 14, 2010, 5:05 pmPeter says:
Wow. I’m shocked I agree with Yoo on anything. I’ve always told my students that the bar exam is something that stands on its own, demands 2 to 3 months of constant studying and memorization, and has nothing to do with success in law school or success in practice. It’s also struck me as fairly absurd that the US News rankings give so much prominence to bar passage. The impact of those rankings are so profound that law schools are turning themselves upside down trying to figure out how to alter their curricula to improve bar passage when what they ought to be doing is turning their curricula upside down to improve the ability of their grads to practice law well.
July 14, 2010, 5:05 pmJoshua V. says:
Personally, I didn’t mind the bar exam that much. The cost of it was a little taxing, but I understand that it is expensive to create, administer and grade such a test.
I recently passed the February 2010 Bar Exam without a prep course as well. First time taker, as well. I imagine I am one of those hardy (or foolhardy) few. Shelling out around $3,500 for Barbri (that I didn’t have) would have just been too much, especially after an intense three years of study for the exam.
Now finding a job, on the other hand, has been much, much more difficult than the bar. :-/
P.S. I credit visiting this site nearly every day for passing the bar. I felt incredibly comfortable with the 1st Amendment, defamation and Takings Clause problems that were on the bar. Actually, the Takings Clause was one of the six hour long essays on day 3. When I saw it, I thanked Volokh & Somin aloud, smiled, and got away to typing.
July 14, 2010, 5:06 pmStrict says:
Ralph Nader wrote “I do not know how many people would go to a multiple choice lawyer, but the bar exam has it.”
He also claims that if he had one year to tutor an average high school graduate, that kid could pass any state’s bar exam.
July 14, 2010, 5:08 pmMe says:
Ralph Nader may be wrong about a few of the hardest bar exams, but he’s probably right about most of them.
July 14, 2010, 5:10 pmVlad Konings says:
If passing the bar was the only requirement for practicing law, I’m guessing the bar exam would be very different. Otherwise any backwoods yahoo with a sharp mind and a good memory might be able to practice law. As once was the case.
Incidentally, one should be careful not to confuse passing the bar with crossing the bar.
July 14, 2010, 5:11 pmThe Curmudgeonly Ex-Clerk says:
The problem with Professor Yoo’s argument (i.e., “[The bar exam] has little to do with whether someone will make a good lawyer.”) is that it proves too much. Quite often a law school education itself says little about whether a graduate will “make a good lawyer,” because what goes on in law schools, particularly top tier ones, has so little to do with the practice of law.
July 14, 2010, 5:11 pmDavid Welker says:
If your years at Harvard Law School were educationally almost useless, I would say that is probably your own fault. HLS gives us the option of taking the courses we want (except for 1L year where the traditional subjects – Civil Procedure, Torts, Criminal Law, Civil Procedure, and Property are covered – I think HLS has now added an international law requirement) and offers a huge number of courses from a huge number of instructors. It seems to me that you failed to take select course selections very seriously if you weren’t able to find worthwhile courses. So you probably primarily have yourself to blame. On the other hand, maybe you went to HLS in a different era and this would explain our difference in perceptions.
Regardless, you shouldn’t try to generalize from your own experience to public policy for everyone else.
That said, while I wouldn’t call law school educationally useless, I would think that significant reform is necessary. I agree with Professor Bainbridge at UCLA who moved quite successfully from the Socratic method (which is inefficient and wastes a large amount of time) to lecturing.
July 14, 2010, 5:12 pmReader says:
Maybe lawyers should have to pass an ethics exam (like the MPRE) but nothing else.
Unethical lawyers impose externalities on others that can’t be taken care of by the free market.
But the market can discourage simple incompetence among lawyers.
Maybe the bar exam should be eliminated, with the exception of the MPRE.
July 14, 2010, 5:13 pmMe says:
David Welker is right about the socratic method, which is wasteful, to say the least:
July 14, 2010, 5:17 pmyankee says:
But at those firms the partners who rake in the most compensation are the best salespeople, not the best lawyers. This is actually true across industries: the best-paid person in a company is often not the CEO, but the best salesperson.
July 14, 2010, 5:20 pmwm13 says:
Joshua V’s story at 5:06 (about a takings clause question on his bar exam) reminds me that when I was studying for the bar, I relaxed/wasted time by reading Louis Auchincloss, including a story about a lawyer who missed a RAP issue and suffered dire consequences. On the bar exam, the exact same fact pattern was presented. What a great moment.
(I presume the explanation is that NY bar exam essay questions are drawn from Court of Appeals cases of the past few years. Auchincloss must have seen the same case as the bar examiners did, and each put it to their own uses.)
July 14, 2010, 5:20 pmDavid Welker says:
But if you can’t pass the bar, you can’t practice law. It makes sense for schools to focus on training their graduates to pass the bar (and for US News to penalize schools where students don’t pass the bar) if this isn’t already assumed given the quality of their student body.
The problem is not that law schools prepare students to do what they need to do to become lawyers (i.e. pass the bar exam) but that the bar exam itself is so lame. Imagine if the bar exam focused on information and skills that were most useful to practicing lawyers. Then law schools who focused on teaching their students to pass the bar would also be teaching them to become lawyers.
July 14, 2010, 5:20 pmDavid Welker says:
Yes, it is true that marketing and salesmanship is often a key determinant to compensation at large firms. But with the large firms, at least as a client you know you are very likely to get work that is high quality. (Now whether that high quality work will be worth the price is another question.) In contrast, in the smaller and solo firm world, you may have a lawyer who is good at marketing and good at salesmanship, but isn’t that good at the actual practice of law. It is really hard for clients to tell the difference, in many instances. For this reason, I am very skeptical of Somin’s claim that if we abolish the bar exam, the “invisible hand” will magically solve problems with lawyer quality.
July 14, 2010, 5:27 pmBruce Hayden says:
Most states require a certain amount of Continuing Legal Education (CLE) every year. The two states I am licensing in require 15 hours a year, with maybe three of them in ethics. Of course, the quality of the CLE varies widely. Thank goodness we only need about that 50 hours every three years – I don’t know how you fit in 50 hours a year.
One of the nice thing about the firm I belong to is that they put on a lot of lunch time CLE presentations. For most in the firm who want to participate, it is via video-conference. For us, it via GoToMeeting and our conference calling system. They pay for lunch, and we listen and watch (mostly) remotely. Surprisingly, the quality is as good, if not better, than what you get at a bar convention. So, I have a bit more of 30 hours for the yearly reporting cycle ending last month.
July 14, 2010, 5:29 pmDave123 says:
In law school I learned how to think, analyze, and argue. These are skills that are far more important to me (not only as a lawyer, but in life) than all the memorization I did for four years as an undergrad and studying for the bar exam. Law school was probably the best educational experience of my life. My one criticism of law school is that the third year is fairly useless.
With regards to the benefits of studying and taking the bar exam, the pressure, at least, gives you some taste of what being a first year associate is like.
July 14, 2010, 5:32 pmPhil Smith says:
Annnnd Dilan Esper wins the coveted “Order of the Queef” award for being the first out of the gate with a pointless ad hominem.
July 14, 2010, 5:38 pmalkali says:
As narrowed, I suppose I understand why you might think this, but I still disagree. The kind of memorization required for the bar exam is pretty low grade — it’s not like asking someone for the first 3000 digits of π. True, there are a lot of facts you need to know to perform well on the bar exam, but the vast majority of them relate to the test taker’s understanding of substance. A law student doesn’t “memorize” that trespass is an unauthorized intentional entry into another’s land, any more than a physics student memorizes F = ma. That’s just a matter of knowing what trespass is.
As I recall, there are a few subject areas covered by the bar exam for which memorizing some arbitrary facts is required — what the various statute of limitation periods are, what the names of crimes are and what separates the degrees, some of the divorce and estate stuff. But even as to those few areas, a test taker is not required to recall every detail to obtain a passing score.
July 14, 2010, 5:40 pmRandom Visitor says:
Pointless ad hominems are Dilan Esper’s stock in trade
July 14, 2010, 5:44 pmMichael Tinkler says:
Does anyone care about what the professional certification exercises of the Class of 1968 says about law school today?
July 14, 2010, 5:47 pmGuest33 says:
It might be useful to distinguish between failing the bar on a particular attempt from being unable to pass after multiple attempts. After all, it’s the latter that would keep someone from being a lawyer. As someone facing my first bar exam–without all that much confidence–I’d like to think that failing a bar exam isn’t much of an indicator of future competence. On the other hand, I have to admit that I’d question the competence of anyone who could not pass period.
Whatever might be wrong with the subject matter or format of bar exams doesn’t necessarily detract from the exam’s value as a signal that you’re together enough to put in the necessary effort (rather than being distracted by blogs, I guess). Of course, it might take an attempt or two to realize what level of effort is necessary. And, I’m sure bar exams favor those with somewhat irrelevant skills (of rote memorization, say), but for those (like me) who lack those skills, that’s what the second and third try is for.
July 14, 2010, 5:49 pmKenneth C. Brooks says:
Is this the same John Yoo that wrote the memorandum for the Bush adminsitratin effectively applying the ancient doctrine of outlawry to terrorist suspects and/or enemy combatants?
July 14, 2010, 5:52 pmSally says:
You make it sound as if Rain Man could pass the bar exam.
It doesn’t take a super human memory to pass the Bar exam. A lot of people who fail the first time miss by just a couple of points so it seems clear it’s not just a matter of having a poor memory. Sometimes it’s just bad luck, one or two more points on the Contracts essay question and they’d have had it. More often than not, it’s poor preparation.
The biggest problem with the bar exam is the tension between the various state bar examiners and the bar review courses. This seems to be the reason why the exam, at least the multistate, has become increasingly bizarre in the last 25 years or so. The examiners are writing the questions to beat the bar review people and not as a means to test applicant knowledge.
This said, I think the bar exam is useful and so far I haven’t seen anything suggested that would be suitable to put in its place. I guess if you really want to avoid taking a bar exam, attend the University of Wisconsin Law School and plan to practice there. Or Marquette.
July 14, 2010, 5:52 pmSally says:
Guest 33 said:
Failure is not an option. If you really want to pass, stop reading this pointless discussion about eliminating the Bar exam because it isn’t going to happen before you have to take it. Get back to doing practice questions.
July 14, 2010, 5:55 pmDavid Welker says:
This is a rather pathetic defense of the bar exam, don’t you think? I am sure that people who are completely lacking in intellectual capacity could not pass the bar exam. And I am sure that such people are not qualified to be a lawyer either. But if all your bar exam is doing is keeping the very least able from practicing law, it isn’t really doing much.
As Somin noted, it is possible that someone who isn’t good at the vast amount of memorization necessary to pass the bar exam even after multiple attempts would be a good lawyer a specialized area. The objection about needing to know a little about other areas of law made by someone above is also easily disposed of. Such knowledge will naturally accumulate as one practices and also could easily be tested on more specialized bar exams geared to particular specialized practice areas.
Also some people do not test well after an initial bar exam failure due to subsequent anxiety and panic surrounding such a traumatic experience. You should not assume that if you fail the bar the first time, you will actually pass it the second or third time. There is a good chance that failing it the first time would be such a psychologically scarring experience that you will not test well on subsequent attempts. Indeed, probably most people who fail the bar on the first try fail on subsequent attempts, at least if I remember the statistics from California correctly. I believe that this is not merely a matter of their inability to memorize, but also the loss of confidence that naturally comes from such a failure and the inability to recall in a state of anxiety and panic.
The bar exam as currently constituted is not particularly well-suited at weeding out those who would be good lawyers. There are plenty of people who pass that are bad lawyers (I have seen their written motions) and probably plenty of people who do not pass who would be good lawyers.
July 14, 2010, 6:06 pmReader says:
I think you can study law as an undergraduate subject in many other countries (some of them even do this for medicine, but the argument for doing it for law is much stronger), which reduces the cost of a legal education, and makes legal representation cheaper and more affordable:
July 14, 2010, 6:06 pmalkali says:
To be sure, I have known bright people who failed their first bar exam, either because they were extremely underprepared or because they were extremely freaked out. (Emphasis on “extremely” — virtually everyone who takes the bar is at least a little bit underprepared and freaked out.) But they all passed the second time.
July 14, 2010, 6:07 pmDavid Welker says:
What is useful about the bar exam as currently constituted, exactly? I don’t see much.
Also, that many people only fail by a few points doesn’t go to show that the issue is not one of failure to memorize.
Indeed, the most important preparation for the bar examination is the memorization of a vast quantity of material, much of which will not be used again in practice, and if it is, not based on memory but instead based on looking the law up.
The bar exam really annoys me, because it wastes a lot of time and resources that would be better spent on productive activities both for test takers and the people who eventually grade the exam.
July 14, 2010, 6:14 pmalkali says:
On the contrary — keeping the utterly unqualified and incompetent away from legal practice is about as much as you can expect a bar exam to do, and that is something well worth doing.
Well, you would expect people who failed the bar exam the first time to be more likely to fail it the second time, and the third time. That would tend to show that the exam is actually measuring something and isn’t just random. I suppose it could be psychological scarring in some cases, but I suspect that in most cases “being bad at things like bar exams” is the dominant factor.
July 14, 2010, 6:15 pmDilan Esper says:
Pointless ad hominems are Dilan Esper’s stock in trade Phil Smith: Annnnd Dilan Esper wins the coveted “Order of the Queef” award for being the first out of the gate with a pointless ad hominem.
And I’m sorry we have two people who lack a sense of humor among the commenters.
July 14, 2010, 6:16 pmbyomtov says:
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.
If the bar exam doesn’t work then what we have left is market competition, like it or not. In fact, we have it anyway, among those who do pass.
How well it works, especially for those who need a lawyer only seldom, is a different question. Not being a lawyer, I don’t have a strong opinion about the bar exam, though my guess is that it weeds out some of the worst incompetents, but doesn’t do much more.
Maybe I’m going off-topic here, but I’d be curious to know what information lawyers think should be more readily available to consumers to help the market for legal services function better. Or does it work just fine?
July 14, 2010, 6:31 pmDavid Welker says:
Why? Are they more relaxed when they take it the second time with knowledge they failed it the first time? I don’t think so. I think that if you fail the first time, you probably are going to approach the test the second time with even more anxiety and with a higher probability of panic. And when people go into panic mode, their higher level thinking abilities diminish as their brains enter into flight or fight mode. Needless to say, this is not how you want your mind to be situated when you are taking such a high stakes test.
As far as being under-prepared, of course most people are under-prepared because the vast quantity of memorization required is excessive.
Looking at actual statistics for the February 2009 California Bar Exam, a bare majority of first time takers passed with 53.2% passing while a majority of repeat test takers failed, with only a little more than a third, or 37.2% passing. The situation for the July 2009 test (when most law students who just graduated from law school take the bar exam) is a little more favorable to first timers, with a majority of 79.3% of takers passing the exam. But the situation for repeaters was even more dire, with less than one-third or 31.2% of takers passing.
So, statistically speaking, if you fail the California Bar Exam the first time, you will probably fail it the second time (assuming that the “repeater” category and the “second-time test taker” categories are largely similar). If the issue were merely under-preparation, you would think that repeaters would do quite well, since they should be able to rely on the knowledge gained from the first time they studied but also would know they have to increase their effort. On the other hand, those people who have difficulties with memorization are probably precisely the sort of people who are going to tend to forget most of what they memorized when taking the exam the first time.
Maybe your friends passed the bar exam on their second try, but if the category of “repeaters” is representative of the category of second-time test takers, they represent a minority. (And I wish the bar exam would break out the repeater category more; I do not know how many people in the “repeater” category are second-time test takers or are just trying over and over again without ever giving up.)
July 14, 2010, 6:37 pmSally says:
David Welker asks:
It’s useful in the same way that requiring an applicant to have graduated from an ABA accredited school as a condition to admission is useful. It’s useful because it establishes clear standards, everyone knows what is expected and everyone has the same opportunity. The bar exam is the great equalizer. Nobody’s license says “first in bar exam”.
I also find it useful because there was a lot of stuff I didn’t learn until I was forced to do so because I wanted to make sure I passed the bar exam. It was incredibly grueling, both physically and mentally, but that has served me in good stead actually when I’ve been forced to endure very long hours operating under a great deal of pressure to get something done that had to be done before I could go home, out here in the real world where I’m expected to know what I’m supposed to know and nobody really cares what it took for me to become a lawyer, just that the state says I am one.
July 14, 2010, 6:38 pmTax lawyer says:
I think this post over emphasizes the role of memorization in passing the bar. I suspect that for many who fail the bar, what is hard is applying the law to the facts, which is a reasoning skill. My recollection from law school is that a lot of students had a hard time applying the law to a fact pattern they had not seen before.
My second point is that no screen will be perfect. (One could argue that there should be no screen, but that is another argument.) In designing a screen, one should not aim for an unobtainable perfection. Rather, the designer wants a screen that has a reasonable ability to eliminate people who should not be practicing law, and that is not too expensive to administer. The bar exam seems to fit those desiderata.
July 14, 2010, 6:46 pmDavid Welker says:
Many of the people who pass the bar exam are utterly unqualified and incompetent. When I volunteered in the prosecutors office, I was horrified by the poor quality of a lot of the work that I saw offered by defense counsel. Proof that you can memorize is not proof that you can think strategically or write a decent motion on behalf of your client. Some defense counsel took so little pride in their work that they copied and pasted text for their motions from the internet and did not even bother to edit them to tailor the motion to their client’s case. My own practice is to write every motion from scratch and take complete pride and ownership in my work. But if you are going to go with copying and pasting boilerplate from other motions (or worse, copy other motions in their entirety!), at least make sure you don’t leave facts in the motion that aren’t applicable to your client!
The bar exam is a useless exercise except for those with the lowest possible standards for what it should accomplish given the massive amount of energy devoted to it. It does not even weed out the bad lawyers but it probably weeds out plenty of people who would be good ones.
As for your skepticism that failing the bar exam the first time is not usually a scarring experience that would make applicants more likely to become excessively anxious and prone to go into panic mode on subsequent attempts, our intuitions are precisely the opposite.
July 14, 2010, 6:51 pmalkali says:
Of the bright people I know who failed the bar: The underprepared came to Jesus and actually studied the second time. The excessively freaked out realized they were being irrational when they noticed that all of their friends passed.
I agree, they are a minority. Indeed, one would hope that most of the people who fail the bar exam the first time fail because they lack the skill set necessary to be competent lawyers, and not because of some arbitrary personal circumstances.
July 14, 2010, 6:52 pmMark Field says:
I think there’s abundant evidence on this site alone that Hans is shameless.
What’s my prize for being second?
July 14, 2010, 7:03 pmDavid Welker says:
My counter-argument is that wasting countless hours memorizing information where much of that information will be useless later is not really necessary to put in long hours later (assuming one chooses such a law job).
Notice that you aren’t citing the information you learned in the bar exam as being extremely useful to you in your practice. (And you better not say it was, because if you use that information without looking up the relevant law and precedents at a much deeper level than required for the bar exam, I would say you are committing malpractice.)
And this argument about the “great equalizer” doesn’t impress me either. Unfortunately, law has to be one of the most status differentiating professions out there. So if the bar exam is meant to be a great equalizer, it is doing a really horrible job.
July 14, 2010, 7:05 pmDavid Welker says:
Your hopes are mostly wishful thinking. The most important skill set that the bar exam tests is memorization.
July 14, 2010, 7:07 pmDavid Welker says:
Tax Lawyer,
Two counter arguments:
(1) To test such reasoning skills, there is no need to require the vast amounts of memorization that the bar exam requires.
(2) No one is arguing that the bar exam must be perfect. We are arguing that it is not even very good at accomplishing anything much useful. This is especially so relative to the huge amount of money, time, and energy that is devoted to it.
July 14, 2010, 7:11 pmyankee says:
Studying for the bar exam taught me the basic principles of a lot of subjects, which means I’m prepared to much better prepared to identify potential issues regarding those subjects, even though they only come up rarely. I learned about ten times more law studying for the bar exam than I did in law school, though law school did leave me super-prepared should I ever have to offer a policy argument to a court.
EDIT: Though to be fair, this is more of an argument against the current system of law school pedagogy than it is an argument for the bar exam.
July 14, 2010, 7:29 pmVisitor Again says:
Even if you don’t know Dilan Esper, you certainly know how to write pointless ad hominem.
July 14, 2010, 7:50 pmThe Curmudgeonly Ex-Clerk says:
David Welker:
Your example, specifically lawyers who inappropriately cut and paste in motion practice, is not a convincing criticism of the bar exam. The problem with such lawyers boils down to lack of professionalism, which is not something that a bar exam tests or could test in an effective manner. Arguing that bar exams are inadequate on this ground is like arguing that the incidence of attorney discipline demonstrates the inadequacy of the MPRE. No one thinks the MPRE safeguards the profession or public from unethical conduct; the MPRE merely tests a candidate’s knowledge of legal ethics.
Similarly, I don’t think that anyone really thinks that bar passage conclusively demonstrates fitness or ability to practice law well or that state bar exams are designed to ensure that the practice of law is reserved exclusively for those who can do it well. Ostensibly, the exam is designed to ensure that new lawyers possess the minimum legal education thought necessary to prevent them from posing an undue danger to prospective clients and the public at large.
Lawyers often subsequently specialize in a particular field (or fields) of law. But those taking the bar exam have not yet done so; ergo, the test necessarily is broad and general in its subject matter coverage. In addition, as some of the prior commenters have suggested, the broad array of topics addressed in bar exams prove useful to practicing lawyers in general; even if the specifics fade over time, one might not even recognize a particular issue exists in the absence of prior study.
Preparing for the bar does involve a fair amount of memorization, but so too does the practice of law. Sure, we practicing attorneys research a great deal. But the practice of law does not exclusively consist of looking things up in law books — specialized knowledge is our stock in trade; a lawyer who does not simply know certain things, or who must look up everything, is pretty poor counsel.
Moreover, lawyers often must memorize a great deal of information about particular cases (e.g., the facts; the law) for a variety of purposes (e.g., oral argument; taking effective expert depositions). I think that Professor Somin’s original post, and some of the comments, discount the amount of memorization that effective lawyering often requires.
July 14, 2010, 8:10 pmLongwalker says:
I attended Fordham Law as an evening student while working full time. My class marks suffered because of my workload. I took BARBRI before the New York State bar exam and passed the first time.
What I remember hearing from the BARBRI instructors was that the bar exam should be the last time I should rely on my memory. I was repeatedly told that, as a practicing attorney, I must check and double check both statute and case law.
I followed that advice both as an attorney and as an administrative law judge. I regret to say that more than a few attorneys who appeared before me did not follow such advice.
In one case, an attorney wasted a full hearing having witnesses testify when, under the circumstances, a first year law student from a low tier school would have presented one piece of evidence that would have resolved the issue completely in the clients favor. The attorney had graduated from a good law school and had passed the bar exam but was unable to prepare a simple case.
The bar exam and law school does not weed out all incompetent attorneys and, unfortunately, the market, as regards attorneys, doctors, politicians and other one-shot purveyors, is not an efficient substitute – I wish it was.
July 14, 2010, 8:20 pmThe Curmudgeonly Ex-Clerk says:
Longwalker wrote:
But surely that’s not the right criterion for assessing the value of bar exams or law schools. Is there any conceivable credentialing mechanism that would achieve so perfect a result?
July 14, 2010, 8:31 pmrjs says:
I agree with Yoo and Somin that most of the bar exam is not a useful measure of competence. However, the California Bar exam’s so-called performance tests aren’t all that bad because they measure a taker’s ability to apply rules to facts and don’t rely on memorization.
Still, if we lived in my ideal world, law schools would be held to a higher standard, and obtaining a JD would result in a license to practice law (anywhere in the country – this state-by-state business is really outmoded).
July 14, 2010, 8:59 pmSkyler says:
What I learned from the MPRE multiple choice test is that you’re not guilty if you break into your neighbor’s house and take his property with the intent to deprive him of it permanently, so long as you believed it was your own property.
I don’t think that defense will work well in a courtroom.
July 14, 2010, 9:03 pmDavid Welker says:
curmudgeon,
The argument is not that the knowledge one learns on the bar exam is guaranteed to be totally useless. It is that, depending on one’s practice area, it often turns out to be. Learning little nuanced details of the law outside of your practice area is rarely going to be useful.
With respect to your straw man that critics of the bar exam expect the exam to be perfect, that is not the case at all. We don’t expect perfection; but given the massive resources devoted to the exam, we expect it to function much better than it does.
I agree that a good memory is useful for situations in law practice; but not typically memorization of the sort implied by the massive memorization exercise that is bar exam preparation.
Here would be a good test for the bar exam: Do practicing attorney’s generally think that their time studying for the bar was a good use of their time as a way to prepare to practice law even if they did not have to take the bar exam? I would say that the answer for the vast majority of attorney’s would be no. The long term value of most of that studying for most attorney’s is rather low (not non-existent, but nothing justifying the level of effort that the bar exam typically requires) compared to the resources devoted to it.
Here is my proposal. Keep the general bar exam if you want. But in addition give law students the option to complete one or more specialized bar exams (alternatively or in addition) that allow practice in more narrow areas of law instead and generally not outside of those areas except incidentally (i.e. an incidental claim arising outside your main area in a lawsuit where you are primarily representing a client in your specialty).
If we did this, we would be able to see what sort of lawyers employers and clients would value more: Lawyers who passed a more specialized bar exam or lawyers who passed the general bar exam. I don’t agree with getting rid of the bar exam altogether, but I do believe there is a huge amount of room for improvement in making the exam more useful and relevant. I believe there would tend to be more interest in lawyers who specialized, but maybe the market would prove me wrong.
Why not experiment?
July 14, 2010, 9:05 pmMark Field says:
He is indeed a master.
July 14, 2010, 9:24 pmDon de Drain says:
It is relatively easy to criticize the bar exam and argue that it should be abolished or severely modified. It is much more difficult to come up with a practical alternative to the bar exam that ensures that all practicing attorneys possess the minimum skills that society demands a person have in order to practice law. As I don’t feel that I have any helpful suggestions on what process should be used in lieu of a bar exam, I’ll keep my mouth shut on the topic of whether the bar exam should be replaced with some other process.
I think it is very important that all attorneys be exposed to a wide variety of areas of the law during the “qualification process” that, for most people today, means taking and passing a bar exam. I handle tax controversies. In handling them, I deal with, directly or indirectly, contract law, tort law, civil procedure, criminal law, family law, property law, estate and trusts law, immigration law, international law, constitutional law, etc., not to mention tax law.
Exposure to different areas of the law helps me think of approaches and arguments that I might not otherwise think of. (I know- a preposition is a bad thing to end a sentence with.) I am currently defending a large “erroneous refund” suit brought by the IRS. I uncovered an issue of first impression in the matter, no reported cases anywhere on the issue. Support for my argument on this issue of first impression comes from state law involving civil suits for malicious prosecution.
Of course there are those attorneys who will spend their whole careers defending clients accused of DUI’s or dealing with antitrust law. They may never need to know anything about family law. But the I am a firm believer that the “qualification process”, whatever it may be, should involve exposure to a many different categories/areas of law.
Your score on the bar exam is not necessarily a measure of whether you will succeed as an attorney or will practice with honesty and integrity. There are plenty of attorneys whose ethics, work habits, and basic integrity is/are lacking. And there are people of high intelligence who pass the bar exam who also have little or no common sense.
Just as our form of government may be the “least worst” form of government, I suspect that the bar exam is the least worst screening process available. But I certainly applaud all efforts to improve the process by which states determine that a person is fit to practice law.
July 14, 2010, 9:30 pmThersites says:
I think we should keep the bar exam. But David Welker’s idea of having additional more specialized exams for certain fields makes sense, too.
I also think law study could be compressed partially into undergraduate study, so that people could get a law degree in five years instead of seven.
July 14, 2010, 9:34 pmThersites says:
I enjoyed reading the above comments, which were thought-provoking.
Well, except for Mark Field’s comments, which had nothing to do with the topic at hand. Mark Field should take his personal insults and childish name-calling elsewhere. If you want to insult people, do it at your own blog, not someone else’s. That’s just bad manners.
July 14, 2010, 9:38 pmAardvark says:
The same criticism applies to Dilan Esper:
July 14, 2010, 9:47 pmJenny says:
Let’s start from the position that we want to ensure we have good lawyers. I think everyone would agree that some sort of written test would be necessary as at least one criteria. Are there any statisitcs showing the reasons for failing the bar? Is it really a memorization problem? The problems I’ve seen have been the inability to analyze and reason, not necessarily forgetting the elements of a rule.
Specialized bar exams, if they are taken immediately following law school, would not be that helpful. Most graduates have no idea in what area they want to practice. Many lawyers change practice areas during their careers. One agreed-upon base of knowledge should still be included in a test following law school.
Which brings me to the idea of apprenticeship. I think the practice of law should be seen as nearly equivalent to the practice of medicine in that we should expect and demand our lawyers to be ethical, intelligent, and possess superior judgment. In order to develop these attributes I would like to see the entry to the practice of law become more onerous (but not more expensive). I am not that familiar with the English system (Inns of Court), but I believe it incorporates some of these ideas.
July 14, 2010, 10:08 pmArthur Kirkland says:
Memorization of law school lessons not only is not good preparation for the practice of law but indeed is counterproductive and dangerous. I tell each year’s crop not to rely on the substantive law from class for anything more important than lunchroom debates, and that they are to rely on law school memories for client work in no circumstance because (1) their memory might be mistaken, (2) the law might have changed and (3) the professor might have been wrong. Law school can be essential for imparting the art of lawyering, but is not particularly helpful in teaching the science.
Law schools might serve students better by offering more, smaller courses in fields such as bankruptcy, admiralty, intellectual property, agency, secured transactions, administrative law, civil rights, tax, inheritance, environmental law and similar substantive fields — requiring a student to take bankruptcy or secured transactions, agency or tax, civil rights or administrative law seems likely to create an overload in one field at the expense of a void in another. It might be better to expose a student to skeletal surveys of more fields, perhaps by cutting the semester in half and enabling a student to take two half-semester survey courses instead of a full-semester course in bankruptcy or agency.
July 14, 2010, 10:21 pmThe River Temoc, in Winter says:
I have met enough utterly incompetent non-lawyers (by “utterly incompetent,” I mean that their writing contains more run-on sentences and ambiguity than a James Joyce novel) that I believe there is some value in the bar exam to weed such people out of the practice of law. As they say, “garbage in, garbage out.”
July 14, 2010, 10:22 pmMark Field says:
I assume there’s intended irony here.
July 14, 2010, 10:40 pmDavid Welker says:
I am not arguing that specialized bar exams would be a utopia. But I see no reason to not offer them as alternatives that graduates should have a choice to voluntarily take instead of the general bar exam.
If you didn’t want to commit to a practice area upon graduation, you could take the general bar exam just as you do now. Doing so would enable you to practice in all areas of law, just as it does now. But if, unlike many graduates, you did want to commit to a practice area, your bar exam studies could be appropriately and efficiently specialized to the work you actually want to do. And if you took a specialized bar exam and later decided you wanted to change your practice area, you could take another specialized bar exam that would ensure you had competence in the new area.
I see little reason to not offer prospective attorneys a choice that could make their bar exam studies much more useful to their later practice if they happened to know what they wanted to do.
July 14, 2010, 10:44 pmJenny says:
I’m still in favor of a general exam first, then a specialized exam. As a client, I would want to know my lawyer could pass a general exam.
Other options could be for schools to certify the student passed with an A, then he could opt out of the Property portion, or perhaps individual parts of exams could be taken immediately following completion of the class. Of course, some of these options create all kinds of other actions people would take to get out of a test (grade inflation for one), so it may not be workable in the end.
July 14, 2010, 11:07 pmCornellian says:
Let’s start from the position that we want to ensure we have good lawyers.
I think many people on this blog would reject that premise and insist that the government has no role in ensuring any lawyer is at all competent. In their view, it’s the client’s job to figure that out.
July 14, 2010, 11:15 pmDissenting Reason says:
The bar exam doesn’t test your ability to “work with rules” in any serious way.
There is a practicum section of most bar exams. That requires you to work with a limited set of arbitrary rules and a limited set of materials that you could not have memorized beforehand in a hypothetical jurisdiction.
July 14, 2010, 11:20 pmUrso says:
I’ve joked in the past that I’ve learned community property law three times — once to take a law school exam, once to take my first bar, and again this summer to take my second bar — and that I’ve already forgotten it twice, and plan to forget it again in August.
There’s some truth there. I’ve never done family law, and God willing I’ll never personally handle a divorce case. But I do think there would be something lacking in my legal knowledge if I didn’t have at least some understanding of something as basic and fundamental as how property is owned, managed, and distributed within a family. But I wouldn’t feel like less of a lawyer if I didn’t understand, say, the Sherman Act. And I do think the bar exam makes you learn, really learn, these fundamental and basic tenets of law that every lawyer should know. In twenty years I may not be able to rattle off the precise way to tell whether a donated plot of land is community property or separate property, but I’ll at least remember enough to know it’s an issue, which is the important part.
What I think David Welker underestimates is that, even if I say I never want to deal with community property, no matter what I do I will have clients who get married and divorced; even if I hate corporations law I will have clients who form LLCs. The law is not as simply compartmentalized as you suggest.
July 14, 2010, 11:35 pmJenny says:
I too am very opposed to any unnecessary government interference in free markets. But isn’t the practice of law of such importance that there should be some oversight from a competent, unbiased authority (of course guaranteeing that has problems of its own)?
With regard to the complexities of the law, many times only very sophisticated clients would be able to discern legal competence. If the law were more simple (i.e., less of it, and therefore less government interference), then perhaps letting the client figure things out could be adequate. Considering some potential consequences facing clients, like loss of liberty or life, is it reasonable to say caveat emptor?
July 14, 2010, 11:38 pmPete Freans says:
I had some difficulty passing the bars of three states I attempted (2/3 isn’t bad). The delay hurt both my career and to a certain degree my confidence. As time passed however and the further distance I gained from those stressful days, I realized what a game the bar exam process really was. As with any game, there are shortcuts, “cheats” and tricks which will sufficiently allow a player to be just successful enough to survive the game. In retrospect, the bar exam game and its rules for success were quite mundane and void of inspiration. Having successfully climbed that mountain and formerly viewing those who had quickly passed the bar with the humility and envy a child has viewing a toy in a store window, I asked myself: is that it? Is it possible that those I had envied are as ordinary (or dare I say, incompetent) in the practice of law as they look to me now several years later? The long lesson learned is that the individual determines ones success in law, not whether she passed on the first try or shunned the use of Bar Bri. If I only knew then what I know now….
July 15, 2010, 12:11 amDilan Esper says:
I think the personal attacks about personal attacks are really silly.
Look, here’s John Yoo, who is about the least ethical lawyer in the United States, opining on whether the bar exam (which, as Mark Field points out, tests ethics among other things) is good for the profession. This is like Mel Gibson telling us how to remain calm during a dispute in a relationship.
I have to say, I think that all the criticism of Marc Field and me on this are proxies for people who LOVE John Yoo, who think he’s a great movement conservative who pissed off all those pantywaist liberals and advocating giving those terrorists what they deserved. Because you surely don’t believe that no snark can ever possibly belong in an internet comments thread.
As for Hans Bader, he’s a self-parody. Again, I don’t see how bashing on him is some terrible personal attack, especially since he’s coming on here telling us how great he was that he went to Hah-vahd Law and didn’t learn anything because he knew it all (and presumably had linked to it all) before he got there.
Come on guys– find better right wingers to defend than these guys.
July 15, 2010, 12:58 amAnonymous says:
It’s a bit of the pot calling the kettle black that Prof. Epstein faults YLS for not teaching enough law. I don’t recall my learning anything useful for the bar exam in Epstein’s Contracts course.
But he did treat us to an entertaining takedown of the doctrine of unconscionability.
July 15, 2010, 2:51 amDeep Thought says:
Law school could easily be shrunk from three years to two.
Nothing of value would be lost.
July 15, 2010, 8:24 amDeep Thought says:
July 15, 2010, 8:27 amDeep Thought says:
I actually found the MPRE to be helpful. I learned a lot studying for it.
July 15, 2010, 8:29 amCatoRenasci says:
I think that may be largely specific to California, where students at many law schools are required to take the “Baby Bar” after their first year.
July 15, 2010, 8:31 amConnecticut Lawyer says:
My suggestion would be to have two routes to Bar admission: (a) graduate from an accredited law school with a grade point average of at least ___ (grades would have to be normalized on a standard curve); or (b) graduate from college and pass the bar exam. This would protect the public at least as much as the current regime and open things up a bit.
July 15, 2010, 8:35 amDeep Thought says:
This rings true:
July 15, 2010, 8:39 amDeep Thought says:
Connecticut Lawyer’s suggestion would make sense if the law school grade point average was set high enough (it’s virtually impossible to fail out of some law schools):
July 15, 2010, 8:42 amCatoRenasci says:
I’m not so sure that makes sense. Even when I was in law school some 30 years ago, the level of knowledge of history, economics and political philosophy — all of which I would argue are necessary to understand the ideas underlying our common law framework — was woefully inadequate among both the student body and the faculty. Even though most students and faculty had ‘real’ undergraduate degrees in those days (as opposed to some of the things that now pass for majors), few of them understood very much history or economics, let alone political philosophy, even at the level of mastery of a solid traditional freshman survey course. Today, the situation is worse: law students are often brilliant but ignorant at the best law schools.
Hence, doing away with the requirement of an undergraduate degree would likely only exacerbate the problem without students’ ever having been exposed to serious academic work of any kind.
On the other hand, if law schools were to become four year institutions, with the first two years devoted to the rigorous study of history (including, but not limited to, specifically legal history and the development of the common law), economics (at the ‘upper division micro and macro for majors’ level), and political philosophy (concentrating on reading substantial portions of primary sources from Plato through the present), with a modicum of the rest of a core curriculum in language and science, perhaps the idea has merit.
July 15, 2010, 8:52 amMIK says:
Been a lawyer for nearly 24 years; criminal appellate practice on the prosecution side. I also handle some civil matters that arise incidental to prosecution.
I agree that the bar exam is a poor predictor of success as a practicing lawyer; one of the lawyers I consider a mentor was a brilliant guy, went to Bronx Science HS in NY, City College in the days it was difficult to be admitted to the CUNY four year colleges, and Harvard Law School. He flunked his first time.
That being said, I think the value of law school is nothing other than to allow one to get used to proper time management skills. In my practice, for example, the toughest thing to learn is when to stop doing research and begin writing. Law school is completely unhelpful in that regard, but I consider that the most important time management skill that I have acquired.
Interestingly, I’m not even sure that the law schools do a good job at teaching the skills they purport to teach. I have a summer intern who has just taken a legal writing course and he has described to me what they taught him. Well, the one thing that was omitted (and I asked him if this were so) was that one has to recognize the audience for whom the writing is being prepared. A busy state appellate court, for example, knows the rules of law that must be applied to the run of the mill criminal appeal and while it’s a good idea to remind the court of those rules, there is no need to justify the rule, to explain its general application in any detail, or to trace its development.
In any case, law school is probably one year too long.
July 15, 2010, 9:19 amBig bill says:
It would be interesting to see what “market forces” regulation would do to a whole host of professions and businesses, Prof. Somin. Certainly, if we can rely on felons to sort out the criminal bar, we can rely on women with boob jobs to sort out the plastic surgery profession, and big haired women to sort out the hair dyeing profession, and depositors to sort out the banking profession, and homeowners to sort out electricians and plumbers (many of whom make more than lawyers!). It would be a very interesting experience.
July 15, 2010, 9:45 amPhil Smith says:
Pointing out a logical error is not a personal attack. That you construe it as such speaks to your critical thinking skills, so perhaps your comments illuminate the value of the bar exam after all.
July 15, 2010, 10:02 amReader says:
Nine-tenths of Dilan Esper’s comments are petty, spiteful personal attacks.
What’s worse, they are not very interesting personal attacks.
But Dilan Esper has such enormous and overweening self-regard that he doesn’t even realize what a fool he is making of himself.
Phil Smith is right; Dilan Esper doesn’t understand the difference between pointing out a logical error and making a personal attack. That’s why Dilan Esper is always doing the latter. Silly fool.
July 15, 2010, 10:27 amVirginian says:
My wife is a mid-level medical provider (PA). She has a similar CME requirement to physicians, and takes mostly the same CMEs. She is routinely able to get 1 hour of CME credit by reading a journal article and answering a short multiple choice question. That usually takes her about 15 minutes.
July 15, 2010, 10:29 amSmooth, like a Rhapsody says:
I wonder to what extent folks studying for the bar are reminded that it is a very long, grueling exam and that at least part of the prep should be physical. I remember that I took that pretty seriously when I was studying and felt very good at the end that I was able to stay sharp the whole time (2 days, 7-8 hrs each).
Maybe some of the fails are people who just wear out.
July 15, 2010, 10:30 amArthur Pendennis says:
Very little practical knowledge is acquired in law school that helps you on the bar exam or to practice law. Very little of what is on the bar exam will be of use in the practice of law. (I went to a very good law school – or at least one with a very good reputation – and I’ve taken and passed two bar exams.)
Memorization skills are useful for both the bar exam and the practice of law. And the analytical skills acquired through three years of law school (known as “thinking like a lawyer”) is useful in the practice of law. In fact, memorizing a huge amount of arcane information in a particular speciality and then combining it with the ability to apply it to solve client problems is about the only reason a client will pay you $800 an hour.
In my experience, when classmates I know did not pass the bar on the first try, it was mainly due, I think, to test anxiety, not lack of memorization skills or intelligence in general. After all, when your job is riding on it, there is a lot of pressure.
There has been a proliferation of law schools, and there probably should be fewer, but until that happens, the bar exam is at least an attempt to ensure a minimum quality level.
July 15, 2010, 10:32 amjagcap says:
1. There are lots of poor lawyers.
July 15, 2010, 10:38 am2. All of these poor lawyers jumped through all the (fairly) rigorous hoops necessary to become lawyers.
3. Removing any of these (admittedly somewhat arbitrary) hoops would increase the number of lawyers.
4. Any increase in the number of lawyers will increase the number of poor lawyers.
Therefore,
Let’s increase the number of (yeah yeah arbitrary, I know) hoops. Maybe folks who really want to be lawyers, at least enough to jump through all the (foolish, insulting, oppressive) hoops will be better than the folks who don’t want to be lawyers quite so much.
Dilan Esper says:
I think phil smith, reader, and hans bader are the same person.
In any event, it isn’t a “personal attack” to say that yoo’s opinions on the bar exam, and bader’s opinions on much of anything, are worthless. A “personal attack” would be, for instance, calling them adulterers or something. These are POLICY attacks, and obviously it makes their defenders upset because they want to opine on things with no accountability.
July 15, 2010, 10:47 amMiddle-Aged Lawyer says:
Dilan Esper is such a narcissistic crybaby. He assumes he is so popular that everyone who criticizes him must be “the same person.” I seriously doubt that Phil Smith and Hans Bader are the same person, Dilan.
As was noted above,
“Nine-tenths of Dilan Esper’s comments are petty, spiteful personal attacks. What’s worse, they are not very interesting personal attacks. But Dilan Esper has such enormous and overweening self-regard that he doesn’t even realize what a fool he is making of himself.”
July 15, 2010, 11:07 ambob says:
Did John Yoo just cite to The Paper Chase? I call bullshit.
July 15, 2010, 11:15 amPhil Smith says:
Of course, it’s inconceivable (a la Vizzini) that more than one person could be so obstreperous towards you. At any rate, ad hominem, since you’re apparently innocent of this branch of thought, is an argument “against the man”, in contrast with addressing the argument itself. It’s an ad hominem to state that “yoo’s opinions on the bar exam … are worthless.” Your evident lack of awareness of these simple rules of informal logic indicates that the bar does not confer upon one even the most rudimentary understanding of logic.
July 15, 2010, 11:29 amMiddle-Aged Lawyer says:
I agree with Phil Smith. (And, no, I am not Phil Smith.) As I said earlier,
July 15, 2010, 11:40 amFrequent Reader says:
How true!
July 15, 2010, 12:12 pmtoadold says:
I have lousy memorization skills, not much of a mind for details, and little desire to interact with people. Most of my reading has been dilettante.
July 15, 2010, 1:39 pmWhat I think I see in the bar exam is a “rite of passage,” a painful ceremony designed to separate the serious from the non-serious. It might be possible to replace it with a ceremony involving extensive facial tattooing of the face with hammered needles and no anesthetic. If the examine can remain still and not scream to much they would be a lawyer afterward. It would be quicker and cheaper and enable one to ID a lawyer at 50 paces.
The Bar Association(s) have done a lousy job of policing their own in my opinion. Government regulators seem to very prone to corruption. So is there some way to set up an outside non-governmental agency that would remove the tattoos of the incompetent?
Dilan Esper says:
This is almost certainly sockpuppetry.
Where is Mary Rosh when we need her?
July 15, 2010, 2:09 pmzippypinhead says:
(On-topic, but coming late to the party)
When he was still in his prime, Yale Kamisar taught my 1L Criminal Law course. He literally wrote the (case)book, and played a role in some of the SCOTUS cases that set core principles in the field. Yet he always came to class with a stack of primary and secondary materials that were re-highlighted so many times that the text was all but illegible.
One of the bolder students asked Kamisar why HE of all people still needed to rely on books so heavily in his field of expertise. His pithy and entirely-correct reply: “A lawyer who relies on his memory is a lawyer who commits malpractice.”
But after having practiced in the trenches for a quarter-century, its also clear to me that one had better understand the general principles underlying broad swaths of the law beyond one’s narrow specialization if one wishes to be an effective advocate and counselor. I litigate in a fairly specialized field, but I can say with some confidence that one way or another over the years, I’ve stumbled across case or client issues touching on literally every one of my bar exam’s main subjects (except maybe admirality).
This isn’t unlike a physician needing at least enough of a passing familiarity with areas of medicine outside her specialization to be able to spot issues and know when an otherwise-standard treatment is contraindicated or when to refer the patient to a specialist. For example, an OB-GYN needs to know more than just the female reproductive tract — she needs to also know something about radiology, oncology, neurology, psychiatry, gasteroenterology, and even (sadly) pediatrics, to best serve all of her patients.
Med students are systematically exposed to the core medical disciplines during their third and fourth year clinical rotations. Law students don’t really have anything similar (first-year core courses are, frankly, too theoretical to be of much use here). Studying for and taking the bar exam is about as close as budding lawyers get to a comprehensive practicum.
July 15, 2010, 3:03 pmPhil Smith says:
Whatever gets you by, Vizzini.
July 15, 2010, 3:28 pmDilan Esper says:
Whatever gets you by, Vizzini.
Pretty funny that a bunch of cowards posting anonymously are attacking someone who posts under his real name and takes responsibility for what he says on the grounds of “personal attacks”. :)
July 15, 2010, 5:53 pmbyomtov says:
What is pointless about pointing out that Bader sometimes has trouble backing up his claims?
July 15, 2010, 6:02 pmPhil Smith says:
Phil Smith is my name, Vizzini. Can’t help it that it’s also a common name. However, you are still just indulging in ad hominem. Honestly, do you have any other tools in your rhetorical bag?
July 15, 2010, 6:24 pmrjs says:
Not true. The only students required to take the First-Year Law Students’ Examination are those who (1) do not attend a school accredited by the ABA or California and (2) have not completed at least two years of undergraduate work. There are many low-ranked, accredited (even by the ABA) schools in California whose first-year attrition rates (euphemism for flunking out) are significantly higher than the higher-ranked schools.
July 15, 2010, 7:38 pmrjs says:
It should actually be: The only students required to take the First-Year Law Students’ Examination are those who (1) do not attend a school accredited by the ABA or California OR (2) have not completed at least two years of undergraduate work.
My apologies for the error.
July 15, 2010, 9:31 pmDilan Esper says:
Phil Smith is my name, Vizzini. Can’t help it that it’s also a common name. However, you are still just indulging in ad hominem. Honestly, do you have any other tools in your rhetorical bag?
“Hans Bader is a jerk.” = ad hominem
“Hans Bader was caught making a fraudulent argument on MSNBC” /= ad hominem.
Similarly:
“John Yoo is a scumbag.” = ad hominem
“John Yoo’s prior conduct disqualifies him from rendering an opinion anyone should listen to on the issue of testing lawyers for ethics.” /= ad hominem.
If you are going to throw terms like “ad hominem” around, you need to learn what they mean first.
July 16, 2010, 2:07 pmPhil Smith says:
No, Vizzini, any argument of the general form “Person X has an attribute alpha, therefore their argument is invalid” is an ad hominem. “Ad Hominem” is short for “argumentum ad hominem”, or, as I previously attempted to explain to you, argument against the man. “John Yoo is a scumbag” isn’t an ad hominem, it’s merely an insult. “John Yoo’s prior conduct disqualifies him from rendering an opinion anyone should listen to on the issue of testing lawyers for ethics” is an ad homimen. You’ve got it exactly backwards.
If you really believe that John Yoo’s ethics are that significantly out of whack, the conclusion that is supported by that premise is that the bar is ineffective at testing for ethics, given that he passed the bar. Which, amusingly, supports Yoo’s contention about the bar itself.
I do applaud you, however, for making your second non-fallacious (albeit almost entirely erroneous) comment on this thread (your point about Hans Bader making fraudulent arguments is non fallacious). Congratulations.
July 16, 2010, 2:36 pmBetter Late Than Never says:
This seems like beating a dead horse, but Hans Bader did not make any fraudulent argument.
He was apparently relying on the following news story from Voice of America, which reported exactly what Bader said it did — namely, that the government rejected an offer of foreign assistance partly due to the Jones Act.
Even some of the comments hostile to Bader at the web link Dilan Esper cites admit that Bader did not distort anything (although they do argue that the Jones Act was not a big factor in preventing foreign aid in fighting the spill, a smaller factor, than, say, the EPA, which apparently was a much bigger obstacle to international assistance).
The story itself may or may not have been accurate in all its particulars, but it was hardly fraudulent for Bader to cite it for exactly what it said.
VOA NEWS
Dutch say They Could Speed Gulf Oil Recovery with US Permission
. . .
In Louisiana and other states on the Gulf of Mexico there is frustration over what many residents see as a slow response by the U.S. government to protecting coastal areas. Some critics of the Obama administration cite offers by the Netherlands in April to supply sophisticated skimmers and dredging devices, and the administration’s failure to accept the offer. The issue is as murky as the oil slick now threatening regional beaches.
A Houston-based company is now cleaning oil off surface water in the Gulf of Mexico using sweeping arms that attach to a boat and help gather large amounts of oil. These sophisticated devices were provided by a Dutch company with years of experience in such operations, but instead of using the Dutch ships and crews immediately, when The Netherlands offered help in April, the operation was delayed until U.S. crews could be trained.
The Obama administration declined the Dutch offer partly because of the Jones Act, which restricts foreign ships from certain activities in U.S. waters. During the Hurricane Katrina crisis five years ago, the Bush administration waived the Jones Act in order to facilitate some foreign assistance, but such a waiver was not given in this case.
The Dutch also offered assistance with building sand berms (barriers) along the coast of Louisiana to protect sensitive marshlands, but that offer was also rejected, even though Louisiana Governor Bobby Jindal had been requesting such protective barriers.
July 17, 2010, 9:50 amBetter Late Than Never says:
The web link for the news story excerpted above is:
www1.voanews.com/english/news/usa/Dutch-say-They-Could-Speed-Gulf-Oil-Recovery-with-US-Permission-96341579.html
July 17, 2010, 9:57 amDilan Esper says:
No, Vizzini, any argument of the general form “Person X has an attribute alpha, therefore their argument is invalid” is an ad hominem.
This isn’t right. Saying “Hans Bader has a credibility problem because he went on MSNBC with false claims about the Jones Act and therefore we shouldn’t trust his legal analysis on other matters” is an argument about his credibility, which isn’t the same as the ad hominem fallacy. Were it otherwise, any claim that someone is dishonest and shouldn’t be believed would be automatically fallacious.
This seems like beating a dead horse, but Hans Bader did not make any fraudulent argument.
The problem is, Bader didn’t simply make the limited claim about one Dutch offer that you say might be true. He made a broader claim that was clearly false and was exposed.
July 18, 2010, 4:11 pmBetter Late Than Never says:
Bader did not make any “clearly false argument” at all.
Bader didn’t even claim that there were a large number of rejections under the Jones Act, arguing instead that even a single rejection under the Jones Act could dissuade many future offers from even being made.
But others have reported that aid WAS in fact repeatedly rejected under the Jones Act, according to newspapers (both before and after Bader discussed the Jones Act).
As a recent article in the Richmond Times-Dispatch notes, the federal government initially “refused offers from Belgium, the Netherlands, Norway, and others, citing the 1926 Jones Act that prohibits foreign vessels from operating in U.S. waters.” (“Gulf Disaster Turns National Catastrophe,” July 12, 2010).
http://www2.timesdispatch.com/news/2010/jul/12/ED-BALGORD12-ar-288140/
Similarly, a June 22 article in the Wall Street Journal, “A Tale of Two Disasters,” said, “President Barack Obama has not suspended the Jones Act. Many countries such as the Netherlands, which would like to help and have expertise in cleaning oil spills, can offer only limited relief. This is significantly delaying the cleanup.”
Bader appears to have been slow on the uptake, and a bit repetitious, but that’s not very relevant to his comments above — Bader’s comments in the above comment thread were topical and on point, and also linked to an article he wrote that itself was topical and on point (although the article’s recollections of Bader’s laziness in law school isn’t a very good marketing pitch on Bader’s part).
If Bader is slow, and given to repeating himself (and linking to the same sources, like his own articles, rather than others by people with greater insight or distinction), then that actually supports his argument that law-school attendance requirements don’t achieve much as a licensing requirement (and also illustrates that they don’t necessarily promote critical thinking or creativity, either).
July 19, 2010, 10:57 amPhil Smith says:
No, Vizzini. There’s a valid link between Party X making false claims about a subject alpha, and discounting other statements by Party X about subject alpha; however, there’s no link between erroneous statements about subject alpha, and later statements about the unrelated subject delta. Linking Bader’s alleged mistakes about the Jones Act to any other subject, in this particular instance the bar exam, is absolutely a case of ad hominem. (Bringing up Bader’s statements about the Jones Act in a discussion about the bar, incidentally, was a red herring in the first place.)
July 19, 2010, 11:43 amStephen R. Diamond says:
For metadiscussion, see “The Bar-Exam Ritual: Good or Bad for Legal Writing—The Hidden Meaning of ‘Memorization’ among Exam Abolitionists,” in Disputed Issues.
July 19, 2010, 11:44 amDilan Esper says:
Better Late:
Your sources say that Obama “initially” rejected some assistance based on the Jones Act. Bader claimed that the Jones Act hindered assistance. Those are two different things.
And the Wall Street Journal Editorial Page is not a reliable source.
Phil:
So your experience, people who are dishonest with respect to arguments on one political issue nonetheless tend to be honest when arguing others? That’s silly.
In any event, even if you were right, that doesn’t mean that it’s an ad hominem FALLACY to argue that because someone was dishonest with respect to topic A, we shouldn’t believe him or her on topic B. The fallacy is limited to PERSONAL ATTACKS, not attacks on credibility. Otherwise, as I said, you could never argue that people shouldn’t be believed due to their past records. Indeed, under your version of the fallacy, it is A LOGICAL FALLACY to argue that Michael Bellesiles or Mary Rosh are untrustworthy, as long as they are writing about something other than guns. Sorry, no dice.
July 19, 2010, 1:15 pmPhil Smith says:
No, Vizzini. You haven’t made anything that even remotely resembles an argument that the people you’re arguing with are dishonest – merely, perhaps, mistaken. “I disagree with that guy” is not equivalent to “that guy is a liar”.
July 19, 2010, 2:07 pmPhil Smith says:
Incidentally, Vizzini, now that this post is off the front page I won’t be looking at it.
July 19, 2010, 5:11 pmDilan Esper says:
No, Vizzini. You haven’t made anything that even remotely resembles an argument that the people you’re arguing with are dishonest — merely, perhaps, mistaken. “I disagree with that guy” is not equivalent to “that guy is a liar”.
Bader lied on MSNBC. Yoo lied about the state of the law in the torture memos.
July 20, 2010, 2:46 pm