This week, many of my former students will be undergoing the painful experience of taking the Virginia bar exam. My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn't required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.
In this post, however, I want to suggest a more modest reform. Members of bar exam boards, such as the Virginia Board of Bar Examiners and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general). And they should be barred from ever holding those positions again until - you guessed it - they take and pass the exam.
After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?
Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it). That's because, as anyone who has taken a bar exam knows, they test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. This material isn't on the exam because you can't be a competent lawyer if you don't know it. It's there so as to make it more difficult to pass, thereby diminishing competition for current bar association members (the people whose representatives, not coincidentally, control the bar exam process in most states - either directly or through their lobbying efforts). Effectively, bar exams screen out potential lawyers who are bad at memorization or who don't have the time and money to take a bar prep course or spend weeks on exam preparation.
My proposed reform wouldn't fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.
The point of this is that in some specialties, we'll almost never see a state courthouse, and our practice will never use the vast majority of subjects tested on the bar beyond the basic tort and contracts concepts.
But for some reason, because I passed the New York bar,
1. I can practice criminal law in New York, despite knowing nothing about it more than the silly things tested on the bar exam, but
2. I can't practice copyright law in Ohio, despite having a fair amount of experience in the area and it being an entirely federal practice area.
Of course, I can practice patent prosecution in Ohio, because the patent bar does something similar for patent prosecution.
So we obviously are able to set up a federal bar exam sort of system for one specialty, why not for others?
could we have a similar system for law school? all 1L professors teaching say property-would have to take the exams of the other professors teaching property. if they didn't get the highest grade...the grade must not effectively measure ability right?
but of course-law professors have already proven themselves....and so have bar administrators.
(not that i wouldn't agree with the abolishing idea-but your idea is just a way of embarrassing people into abolishing it rather than convincing them to abolish it)
I would not object to a system under which all property professors would be required to get a passing grade on exams developed by another property professor. I have no doubt I (and most other property professors) could pass without studying. The idea is absurd only because it's clear that we really would pass with minimal effort. Not so with bar exams and their administrators. Requiring the prof to "get the highest grade" is a red herring, since I would only require the bar administrators to pass, not get the highest grade. After all, bar exams claim to be a test of minimally necessary competence, not a "measure of ability."
but of course-law professors have already proven themselves....and so have bar administrators.
Maybe they (and we) have. But they didn't "prove" themselves by memorizing thousands of pages of useless arcana, but by either being effective lawyers or good scholars and teachers. No one hires law professors on the basis of knowledge of arcana irrelevant to their work.
It's one thing to incent the law students to cheat on the test, but the test committee?
The bar exam is about one thing - can you devote the mindless amounts of time to master arcane details that are only applicable in one instance - seems like a good example of practicing law to me.
Not like practicing law at all. Most real lawyers are specialists who repeatedly deal with cases in their particular fields, and thus constantly reuse their knowledge. And they certainly don't need to memorize thousands of arcane little rules that - when they do need them - can easily be looked up.
No. "Minimal competence for a law professor" means doing at least minimally good scholarship and teaching. That is not measured by how you do on a law school exam, but by looking at your publications and teaching evaluations (by students and other faculty). I'm all in favor of removing professors who fail to achieve minimal competence at these tasks.
Cheating by members of the committee could be prevented by having them follow the same security procedures as are imposed on the ordinary test takers.
(As someone who passed the test the 1st time, I can bash it. No sour grapes here.)
This was one of the worse written tests I have ever taken.
Every question assumed at least one fact, not given. And, if you assumed the "wrong" fact, you got a different answer.
It was less a test of the law, than a test of assuming the same facts as the test writers.
Plus, despite claiming they only test 6 subjects, I found at least two Wills &Trusts questions masquerading as Real Estate questions. You didn't need to know Real Estate you needed to know Probate.
It is just a bad test.
The Patent Bar was a tougher test, but it was a fair test.
The answers were somewhere in that Yellow Pages sized book they give you (open book test, now restricted open book test I hear).
As for the MBE, that is just a poorly written bogus test. Have a multiple choice test, but have one that is competently written.
As for the MPRE (ethics test), good enough test, but I want to point out that the scoring of the ethics test is in fact "un-ethical" or at least "immoral"
They publish to the public that you have to get a, for example, 75 or 80 to pass the test. Sounds like you need a 80% to pass, right?
No, when you study for the test you learn that is 80 out of like 150 points and the test is curved such that 100 is the mean/median (essentially 50% mark, I forget which stat they curve for).
So you need really need to only be in the top ~60% of the test takers to pass (e.g., about a 40% of correct answers).
What a joke.
A joke I was happy to take my passing grade on. Thank you very much.
Aren't there very substantial costs to implementing your plan? For instance, what about running afoul of Title VII and anti-discrimination litigation given the reality of disparate impact? There's another issue too, I think, although I am not an expert on this stuff...
The psychometric g-factor, also referred to as general intelligence, I believe is integral to this discussion. It is the primary and ubiquitous component of differences in test-taking ability -- which is how it was first discovered, and how it received its name -- so expounding upon it a little might be helpful. First, I should acknowledge that g's existence and validity is controversial, but I hope others who might possibly object will agree this is not the proper forum to argue it, so please accept this basic claim arguendo.
There are two generally accepted constructs of intelligence in psychometric testing: fluid g and crystallized g. They are generally correlated in tandem with one another. However, even though crystallized g is a measure of stored knowledge and the ability to recall such knowledge, it generally doesn't have much of an influence on differing scores on individual timed tests. This is because accumulating such knowledge in the first place is determined by variable amounts of fluid g amongst individuals, which has been shown to be the more controlling factor when test-takers are presented with novel situations or content, which I imagine is the case on the bar exam (someone, please, correct me if I'm wrong!) One can generally train a group, with enough time, to learn any one singular concept, but over time smarter people accumulate more knowledge simply because they learn faster than others.
I'm learning about these ideas as an amateur, so again, feel free to double-check or critique the above. Anyway, the problem is that while normalized crystallized g remains at the same level throughout much of life, fluid g begins to diminish by the mid-twenties, and then very rapidly at the start of one's fourties - just about the time that many lawyers are entering their prime earning years, while also being promoted to positions of authority and supervision, such as becoming a member of the Virginia Board of Bar Examiners. In contrast, crystallized g only begins to decline, and slowly, by the age of 65.
It is well known for example, in sciences like physics and mathematics, that many researchers do their best work by at least the start of their thirties, and I imagine it might be similar amongst lawyers. (Although I also imagine that that's true probably to a lesser effect, since from what I've observed the larger portion of becoming a good lawyer is becoming intimately familiar with precedent and established principle, rather than coming up with the cleverest arguments or the wittiest turn of phrase.) Isn't there in fact a stereotype amongst you all that Big Law associates do much of the heavy lifting, while partners "live off the fat" that they've worked hard to earn, correct? That compensation structure may have arisen because the comparative advantage of the more wizened in law firms is their greater ability to draw upon their stored knowledge of the Law, after having routinely navigated it in the past, while the more able and vigorous associates are set upon solving and attacking the issues that may be more complex but less financially rewarding (at least less prestigious). In essence what I'm suggesting, is that on the margin, some of those who would make perfectly fine lawyers, as mother hens guiding their prodigies, would be unnecessarily (and unfairly?) deemed unfit to practice under this scheme. Freshly minted law graduates, who have pay off their Shylockean bargains with law schools, all the while having being repeatedly told that they are surely destined to do great things with their degrees, are motivated to undertake hurdles like the bar exam - I think it would be strange to expect the middle-aged and secure to even muster up half the same feeling. At the very least, you're going to have to lower the metaphorical bar some.
Of course, since the law profession is cartelized, I doubt this could garner much traction even if it were a thoroughly excellent idea. It's probably positively offensive to many in your profession to have their capabilities questioned once they have reminisced about all the hoops they feel they jumped to arrive at their present elevated positions.
i also agree that it tests way too much useless arcana such as the rules on riparian rights and precicly how small a jury needs to get before unanimous verdicts are requited.
i also agree that it tests way too much useless arcana such as the rules on riparian rights and precicly how small a jury needs to get before unanimous verdicts are requited.
Nor is this type of thing restricted to fields where individuals seek to enter the fray. We're often surprised when businesses back state or federal regulations of their activities that would seem to be counter-productive for them. But many, if not all, of these regulations tend to impose costs/burdens that established operators can handle, while raising the bar (so to speak) on potential new entrants.
By way of disclosure, I am a geophsycist, not a lawyer.
15 hours of testing to go and then I can begin the very short process of purging all of this useless information from my brain.
However, I would like to say that the bar prep course (thanks BarBri) has taught me more about the law than any law school course. This should not be read as a fault of my wonderful professors at my law school in Ohio, but only that a bar review course eliminates the crap (Socratic method, overturned legal precedents that we don't need, etc.) and just teaches the substantive material.
Are you saying that taking an exam the first week in May and not receiving the results until the end of June is too long? (I'd love to name names, but I'll resist the temptation
I disagree strongly. The bar prep courses teach the minutia needed to pass the bar. I forgot almost all of it almost immediately. In law school, I learned the theory behind say, the rules of evidence and civil procedure. Those rules change from state to state and from time to time. Understanding the theory allows me to navigate the rules more thoughtfully.
In practice, you end up memorizing the few rules you use all the time, but for the most part, you look it up every time it counts. A quality law school teaches you how the law works and gives you an overview of many different parts of the law. That way, when faced with a specific legal problem, you can identify the issues and look up the answers.
Actually, the bar exam tests for an ability to learn, and thus serves as a proxy for a lawyer's ability to learn an area of law for a client's needs. Why test that? Because the practice of law is extremely specialized, and there is no one general body of law a lawyer must know (as I would guess most practicing lawyers would agree; my understanding is that Professor Somin did not practice).
I would love to know what that is. I'm a bankruptcy guy. The lady in the office to the right of me does patents; the guy in the office to the left of me is a litigator. You would be hard-pressed to find a non-trivial rule that all three of us need to know.
Also, since bankruptcy's entirely federal, there wasn't much of it on the Ohio bar. At least bankruptcy lawyers do need to know some state law, however (exemptions, UFTA, etc.). I really feel for the IP folks; my understanding is that they might never see the inside of a state courtroom and that IP law generally doesn't draw on state law the way bankruptcy does.
I do think that the bar (and, for that matter, first year law school curricula) could be reoriented more towards civil procedure, evidence, and remedies, however.
They have to know the range of material that could be tested. But they don't need to know which specific questions will be on this year's exam (which could be determined randomly, or by other staff members).
Ah. You want to create a conflict of interest on the part of the exam board members.
While we're reforming recruitment into the legal system why not consider a return to the apprenticeship system that produced the likes of, e.g., John Adams and Abraham Lincoln. This would have the added benefit of returning to the bar or to the bench many stellar legal talents who are now wasting their time and society's resources in tenured law school slots.
The multi-state multiple choice test was the most mind-numbing exercise I ever experienced. However, the one and one-half days of Texas law questions were fairly straight forward and didn't generally dwell on areas of the law that a general practitioner wouldn't need to know.
In most states, the bar exam is not the highest hurdle that the vast majority of wanna-be lawyers need to clear. In Texas, I believe you are limited to five tries at passing, at which time they declare you permanently ineligible to practice law. I think this is a good rule.
The first-time pass rates for the bar exam are quite high compared to other professions. The CPA exam, which I passed while still an undergraduate, has a much lower pass rate. A great uncle of mine managed to retire as an accountant without ever passing that one.
Pure and simply, the bar exam is hazing, left installed by the elder members of the profession for no other reason than that they had to endure it, so why shouldn't the next group of graduates. In a matter of weeks, a panel could come up with an exam that tests the skills that one should actually have to demonstrate an aptitude for practicing law: issue spotting; reading comprehension, writing ability, analysis ect.
The bar exam is the equivalent of the BCS system in football: any fool can see that it is absurd, but it is so entrenched by the powers that be that it is difficult to imagine it ever being replaced by a system that makes more sense.
So for the foreseeable future, another generation of lawyers will have to grind its way through a riduculous exercise, of miniscule use and application in their careers for almost no other reason than: that's just the way it is.
Personally, I loved BarBri and taking the Bar exam. I never felt smarter than I did 10 minutes before the start of the first day of the Bar exam. And this after getting a perfect score on the written portion of the California drivers’ license test and presenting the oral defense of my Ph.D. thesis on the same date 30 years earlier.
What is wrong exactly with using a test that forces someone to focus for two months on a large body of information (during Bar prep) and then demonstrate mastery of that material under pressure over three days? Sounds like what a good trial lawyer has to do in practice.
Twice during the thirty years I spent as a professor before I became a lawyer I took the midterm in classes where I was to teach the second half of the course. I got a C+ the first time and the second highest grade in the class the second time. I announced the outcomes the first time I lectured in the two classes. My incompetence to teach the subject based on my abject failures on the midterms figured prominently in the student evaluations at the end of the classes.
I seem to recall that it's unethical to take on a matter you're not competent to handle... if you really knew absolutely nothing, and couldn't educate yourself sufficiently to handle the matter, I think you'd be require to associate with an attorney who was competent.
In education schools, the big thing they teach now is "assessment" -- i.e. how to examine whether your test is accurately capturing the test-taker's knowledge level. My biggest problem with the bar exam is that I don't believe it's a particularly useful assessment tool in determining whether someone should be a lawyer. But the solution to that is to make the test better or to use a different assessment tool altogether (an apprenticeship, perhaps?), not to eliminate the testing requirement altogether.
Ilya I think you may have been a bit humor challenged here.
State bar associations also have some strong incentives pointing the other way. In the first place, the more lawyers there are, the more people who may become dues-paying members. In the second place, many exisiting lawyers want more younger lawyers in the system, not fewer -- some, because they are themselves consumers of lawyers' services (most notably in house counsel, who want to keep their outside counsel's rates low), and some because they are involved in business models which require a large number of younger lawyers (most notably partners at Biglaw firms that employ a "pyramid" model). This is particularly true given the rise of document review via "contract attorney."
I'd be in favor of a reform that splits up the test over the course of the year (cf. the CPA exam). We already can choose a different time to take the MPRE, so why not do the same for the other portions, particularly the MBE.
I don't see the harm in letting a student take the MBE at any time after the first year (when students have had most of the courses tested on it). I took evidence and criminal procedure as a 2L and would have been more than happy to take the MBE anytime before this July (i.e., last July or last February). I don't mind holding off on the state-specific material (which is 1.5 days in Texas) until after 3L year, but students should be allowed to take the MBE at anytime, just like the MPRE.
This would make things much less stressful for those with financial and timing issues. And to the extent it is easier than a 3-day marathon, I wouldn't care if they bumped up score needed to pass.
The accounting professions has a good model: 4 separate exams, which you must pass within a specified period of time (if I remember correctly). The legal profession should borrow from it.
The Bar does reward issue spotting. At least when I was grading (in days of yore), that was pretty much all we looked for: did the writer spot the important issues.
To the extent that issue spotting arises out of reading comprehension, the latter is tested also.
Writing ability and analysis aren't, of course, but they're very hard to grade fairly because they're so subjective.
I concur.
I had to take the Conn. bar exam after being out of law school for over twenty years because of Connecticut's restrictive waiver rules. Believe me, it's much worse the second time around.
You could take your average smart college grad, put him through an intensive bar prep class, and he'd have exactly the same odds of passing as if he had gone to law school for three years. The bar exam measures (1) memorization skills and (2) inductive reasoning skills. Nothing more.
Here's my compromise. If you graduate law school with a C average, you're a lawyer. Keep the bar exam for people who don't want to go to law school.
Agreed. But, the same can be said of law school. I passed the Texas Bar in 1982, and, although I got the highest score in the state for that Test (from an out of state law school, no less), I agree that the Multi-State exam was ridiculous. I assumed that its purpose was not so much to test your knowledge of those arcane rules of law as to be a psychological stressing rite of passage, much like hazing is for fraternity initiates. And yes, for certain specialists, like Tax Lawyers and Security Lawyers, the areas tested by the State Bar Exams are almost completely irrelevant. I practiced with a lawyer who got the minimum passing grade on the Texas Bar, but he was an outstanding Federal Tax Lawyer. But, for all those who tout the benefits of legal specialization, it has been my experience that at least some minimal level of generalization results in better lawyering. I spent the first 5 years practicing Real Estate Law - Development, Leasing, Real Estate Finance. In 1987, while the FDIC and FSLIC were busy closing every Bank and S&L in Texas, I of necessity made the conversion to Commercial Bankruptcy. Frankly, the knowledge and skills I learned as a transactional lawyer made me a better Bankruptcy Lawyer - I was much more detail oriented than the litigators who moved to Bankruptcy, and much better at documenting the transactions involved in corporate reorganizations. I also had the general transactional knowledge, like what it took to perfect a UCC Security Interest, the rules of priority, and the like, to be much better at spotting problems with creditor claims (likely because I was the only one willing to actually read the underlying loan docs and knew what I was looking at) than the attorneys who had only done Bankruptcy or Litigation work. Also, when I went back to doing Real Estate Deals, my experience litigating lien perfection and priority, and other problems with loan documentation that caused problems in bankruptcy cases, better prepared me for the transactional practice.
1. Creates a barrier to entry. If you're into that sort of thing. Please note that it's not much of a barrier to entry; even in so-called hard states (like New York), a little more than 90% of first-time takers who went to NY ABA law schools pass. (Rates in California may vary). This provides a little upwards life in attorney's pay; more importantly, it creates a disincentive (due to lack of reciprocity in many states) for attorneys to "go where the jobs are" quickly and easily, protecting a state's lawyers.
-If you're into that sort of thing.
It's useless for the following reasons:
1. Lawyers are almost never generalists anymore. Which means that the bar requires you to learn voluminous amounts of material on subjects you will never practice in.
2. Even if you are a generalist, because of the vagaries of law school courses, you're only tested on the core 1L + a few extra courses. You are not tested on issues such as family law, or wills and trusts which are too state-specific, nor do you get tested (on the MBE) on agency, corporations, or anything more advanced than the simplest of contracts.
3. For the state-specific portions, you can get some real bizarre outcomes. For example, on the California bar I had to apply Federal Con. Law (of course), and not know the state con law. *For licensing lawyers to practice in the state.* Again, I was relieved (have you seen the California Constitution?), but it is pretty bizarre, since it's to license lawyers to practice in California.
4. The nature of the questions is at once mundane and off-the-wall. Many questions have to be mundane because they are testing tacky little rules that (should) have clear answers. Yet they are also bizarre, because they tend to test events that only exist to test the rules- how many times do we get the idiot who doesn't record title? The mall security guard who protects valuables with snakes? The person who agrees to a contract by saying nothing and performing it instead?
5. Finally, it is inapplicable to real practice (well, the MBE especially). When a law is clear, and there is a clear answer, you don't need much lawyerin'. It's when the law is less clear, or there is some doubt in the issue, or there is a conflict between authorities, that the good lawyerin' comes in.
Finally- to those reading and taking the Bar..... get studying! Nah... it's too late. Take it easy. You'll do fine. (Almost) everyone passes.
mmmmmmmmmm enjoy that delicious, delicious rent seeking.
If a jury finds Bar Applicant's Wife to be a foreseeable plaintiff, which of the following is the least likely reason why?
(A) The Rule Against Perpetuities
(B) Bartender seeks to interevene in suit to protect long-standing supplier/consumer relationship with Bar Applicant
(C) You Did Not Attend a Top 20 School, So Why Are You Even Bothering? You'll Never Get Beyond the North Dakota Public Defender's Office
(D) Res Ipsa Loquitor
I am not hostile to the idea of a bar exam, but I don't think it is the best way of determining whether someone is qualified to practice law.
Now if we were talking about CLE, I would be eager to describe it as an awful system. CLE is a bigger wast of time and money than the bar exam. State bar associations and state supreme courts seem to love mandatory CLE because it gives them more power over the bar and a need to hire more staff and raise more money. Does mandatory CLE make the practice of law any better? I do not think so.
In sum issue spotting and analysis and not rote memorization of rules. Seems fairly typical of what one would want in a practicing attorney, no? If all you did was spot the issue and spit out the rule and write a conclusory sentence you would fail.
Now the MBE on the other hand... yes. What a tremendous pile of garbage. That didn't seem to test the law either! All I remember of that portion is reading the fact pattern, thinking "OK, I get it, this is the answer I am looking for here" and then looking at the 4 MC answers and thinking "WTF all these answers suck!" Mind games. Useless useless mind games.
The Arkansas Bar exam has a state law essay portion on the third day (damn all of you people with two day bar exams). The questions are drafted by local attorneys and are usually over long and poorly drafted, and occasionally ask about ridiculously obscure things. Last year one of the questions was "In connection with the distribution of property in divorce, define active appreciation and tell how this was recently defined by the supreme court." the "model answer" defined the general rule for property distribution and took a mostly accurate crack at the definition, and barely answered the final part.
My first thread win! I am honored and humbled!
Of course, that may be as much a complaint about New York state as anything else.
Agreed.
Also agree that the MBE is actively harmful.
http://www.vbbe.state.va.us/pdf/DressCode.pdf
and
http://www.vbbe.state.va.us/letter.html (see the bright red bold text)
It seems to me that there are three things that the bar exam legitimately does. One, it measures issue-spotting and basic analytical and reasoning skills. These are legitimate skills needed by almost all lawyers, regardless of specialty.
Two, as others have noted, it measures an ability to study, learn and recall a significant amount of material, and regurgitate that material in a coherent fashion. Sounds to me like prepping for a big trial or negotiating a major contract, so I'm calling that a significant skill for most lawyers.
Three, it measures some broad understanding with basic rules of law. No, it really doesn't matter if you know that you must file a certain motion within 60 days rather than 90 days. But you really need to know, without having to look it up, that there's SOME kind of time limit on filing that kind of motion. More importantly, you don't need to know the exact details of the statute of limitations for filing that kind of suit, but you do need to be generally familiar both that time limits exist and the general nature of those limits for various types of claims.
One of my law professors told us that there's 3 things every lawyer needs to know: 1) Something about the law of borders and fences, because you or one of your family or friends is going to have some fight with a neighbor over a tree branch, or sharing in the cost of a privacy fence, and you need to be able to give them some kind of answer at the dinner party when they corner you; 2) The basics of divorce law, because one day you'll get a call from a friend or loved one announcing that they're leaving the bastard/bitch tomorrow, and what do they need to do today to protect their interests. You may refer them to somebody else for representation, but they'll have immediate questions you need to be able to help them with; and 3) the third and most important thing a lawyer needs to know (said my professor), because no matter how many millions you've made for the CEO you helped with mergers &acquisitions, this is what he'll remember you for, is how to get a teenager out of jail in the middle of the knight.
In my own state, the passage rate for the bar remains relatively stable. I haven't seen it go up or down based on the number of people taking it. The ones from the good schools in the state pass at a fairly high rate, the ones from the poorer schools only pass at about 50% or so. They're not actively managing it to keep the stock of lawyers down.
That's not to say that I disagree with the argument that bar membership should be voluntary rather than mandatory. I've found of late that bar associations are flexing their muscles in many ways that they shouldn't, particularly in disciplinary cases. The current obsessive focus on backgrounds (got arrested when you were in college? you better tell us ALL about it and beg us to still let you be a lawyer) is getting ridiculous. But I'm not sure the harsh criticism of the tests we've seen so far in this thread is entirely warranted.
These questions do not strike me as fair tests of an attorney's knowledge and legal ability. They include a three-part civil procedure question, a six-part trusts and estates question, and a four-part criminal procedure question. Punctuating each is a phrase that any bar applicant must hate: "Explain fully."
The applicant has (IIRC) roughly four hours to answer all of these questions and "explain fully" using only the knowledge in his head. The second question, in particular, calls for knowledge of the minutiae of trusts and estates law — an area of law the applicant might never touch!
In the real world, any one of these cases would allow the attorney days to resolve the questions for his clients using not only the knowledge in his head, but also his firm's legal library, consultation with colleagues, and (if he's lucky) an online database. A far cry from the Virginia bar exam scenario!
In what way is this a fair assessment of an attorney's ability? Explain fully.
I see that someone already provided a link to the rules. The Board of Bar Examiners reconsidered the rule a few years ago, and voted to keep it.
I took the VA bar in 2007 and, while everyone was indeed wearing appropriate attire above the ankles, many people were wearing sneakers. And at least you could take your coat off in the exam room.
My (second tier) law school analyzes the bar passage rates by class rank quartile (as I am sure other schools do). As you can imagine, the top quartile of graduates have a very high bar passage rate (I cannot find the exact numbers, but it is high 90s) while the bottom quartile has a very low bar passage rate. Go figure!
a) huge amounts of paperwork that may not be faxed yet disallowing calls to verify reciept and requiring origionals for documents that require extra money for ceritified copies (and often require documents that have proceessing time such as udnergrad transcripts) and not accepting photo copies even if orional copy lost in mail
b) character standerd that require applicants to prove a negative by clear and convincing evidence (that they do not have hcaracter defects that might affect their ability to be a lawyer-in reality who DOES NOT have any character defects that MIGHT "affect" their ability to be a lawyer?)
c) processes that reuqier timely snail mail repolies by half a dozen or more of people who may change their address whithin the amount of time the board reuqires to complete an inestigation-(of course these people have no incentive to fill out htis paperwork promtly and the board will not compelte investigation without)
d) weird mandatory printing instructions (no online app system in many states) such as pages 1-5 double sided pages 6-7 single sided...app returned if no compliance.
etc etc.
Studying for and taking the bar exam was way better than the three years in law school. Other than those in the top 5% or so, year 2 and year 3 are total wastes of time. Your place in the lawyer pecking order is already determined.
I do concur in the absolute waste of time and money in CLE classes.
Further, maybe I am a geek, but I get a great deal out of the 16 hours of CLE Georgia requires. I like being updated on the changes in the law. I learn even more when I am asked to speak and prepare materials.
Wear at least 60dB reduction earplugs or ear coverings. Use even higher rated ones if possible. Sound pressure level in a room of several hundred typewriters going full tilt is remarkably high. It is more than enough to induce at least temporary tinnitus, or possibly permanent in some individuals.
The scam of trying to move from jurisdiction to jurisdiction. I took the Michigan bar exam in February of 2005 and passed. In the summer of 2007, I moved to the DC area, and applied for reciprocal entrance into their bar. $650 for them to do a background check, which included me filling out all the same forms as I had done 2 1/2 years prior (for the same company to do the background check), and 8 months later to get sworn in! Then I had to take an all-day ethics class, at a cost of $200 (after taking the MPRE).
And don't even get me started on what a waste I think the 3rd year of law school is...(should be set up like med school - practical experience rotations).
I don't think the exam is unfair. God forbid an attorney have to explain to anyone (like a judge maybe?) how they came to a particular legal conclusion.
I'm struck by the degree to which the Virginia Bar Examiners just ask the question without an extended attempt to hide the ball (unlike certain distinguished professors at the fine law school I attended on the doorstep of our nation's capitol). Maybe that's because the examiners write all the questions, and are all practicing Virginia attorneys. You might have days to look stuff up and colleagues to do the work for you, but it sure would be nice to have an idea where to start. None of these questions ask for a heck of a lot more than the basics.
#6 Federal jurisdiction/venue. Entirely straightforward. One would think a basically competent attorney might need some idea what court to file pleadings in.
#7 does test a number of provisions of Virginia Estate law, but the only thing I thought was particularly arcane was the question about the federal estate tax. Everything else is a straightfoward application of Virginia rules. I personally have had more questions from friends and relatives about wills than anything else, and don't see anything wrong with testing it.
#8 What's wrong with #8? Four absolute softballs. Two criminal procedure, two evidence.
#9 Nothing tricky about this. Service, service, and "is your client completely screwed now that you blew it and let the other side get a default on liability"? Might be a good idea to have some vague idea of the potential consequences when somebody hands you a stack of important looking legal documents. Of course you could always wait a month or so until one of your colleagues can answer the question for you.
Yes, for individual Bar Exam higher-ups, it could be somewhat inconvenient to have to take the Bar every year -- especially at first. But then they would adapt and quickly become more familiar with the material, and it would become easier and easier to pass each year. Over time, those who continued to struggle with the exam would cycle out and get replaced with Bar Exam experts.
In the meantime, the motivations for the institution (i.e. limiting the number of new lawyers) would remain unchanged. There might be some individuals who would put their personal inconvenience above their professional duties, but those people would eventually be replaced by the market, assuming they even made it past the first rounds of cuts. Or put another way, those who are able to pass the bar have no reason not to keep it the way it is, and those who aren't able to pass the bar won't have a vote.
If anything, I think the individual psychologies might end up cutting the other way. Once the Bar Exam organizations are packed with Bar Exam jedi, they will probably be even less sympathetic to potential exam-takers.
Some professions, like airplane pilots, do routinely require tests as demanding as those for entry to the profession from practicing professionals, and while the passage rate is rarely 100%, it is typically very high.
A pending Colorado case is an interesting test case. A non-lawyer handled a dozen or two criminal cases before being detected. Like all criminal defense attorneys, most of his clients wound up being found guilty, either through plea bargains, or a trial. Now, prosecutors are in the position of defending his competence, despite his lack of bar admission on appeal.
The LSAT example is better as a "modest proposal" for law professors. If your school requires the LSAT (and all or almost all do), all professors should demonstrate that they are at least in the 50th percentile of the students they teach, maybe even the 90th. If not, they should lose their job immediately or let it be known that they really don't think the LSAT is a good measure of law school competence.
Then you are doing a poor job of picking your CLE. Anyone intellectually incurious enough not to manage to find useful courses to fill the minimal amount most states require probably should find a different profession.
Fair enough. The conservative and libertarian AA hires will be treated the same as everyone else.
My gut reaction is that I think that the bar exams do something positive, but can't put my finger on what exactly.
We had a small patent firm where one of the associates had failed the bar a couple times (IMHO through not studying). We merged with a regional firm, and they offered him a paralegal level job, despite being licensed as a patent agent. And he turned them down. He then went on to fail the bar again with his new employer. Nevertheless, I have always thought that there was something a bit slap dash about him in his failure to buckle down and just grind out the bar review. We all did it, and it wasn't that horrible.
I think that we need some form of accreditation to provide a floor to practicing law. One problem I see with going just on law school graduation, is that you have no real assurance that a bar applicant has any knowledge of anything relevant to the practice of law. Sure, most schools require the basics for everyone - property, torts, contracts, criminal, civil procedure, criminal procedure, and Constitutional law. But why? I would suggest the MBE.
Absent the bar exam, how does anyone know whether all those supposedly relevant classes in law school teach what they are supposed to? I sure didn't learn much in contracts, due in a large part to my professor. I am sure that a lot of others here have similar experiences with one or two of their classes. Is the ABA supposed to sit through each class just to know that the core classes are being taught adequately? And if not the ABA, then who should be making sure this happens? It might be easy for a state bar to monitor the law schools in that state, but much harder when there are a lot of law schools all over the place.
Maybe I am a bit too cynical here, but I haven't had much over the years to make me think that law schools shouldn't be viewed a bit cynically.
Ponder: how well does the content of say, the MCAT, approximate the travails of medical school and medical practice? What need do doctors have for Physics and Organic Chemistry in their daily routines?
If you substitute going to law school for passing the bar, that's yet another (different, more expensive, etc.) barrier to admission.
I think that the legal profession is too important to be a monopoly of those who have gone to (ever more expensive) law school, and it's not like medicine where one has to retain a huge mass of scientific data or something, as others have said law school is more a matter of learning how to think about the law. I mean someone could graduate from law school never having taken a course in family law and upon bar admission be eligible to represent people in contested divorces involving child custody and abuse allegations. I can't see how someone who spent the time and effort in individually-supervised study of the law and passed the bar would be worse (and might well be much better) at representing clients in that situation.
It was rather obvious to me that the only reason they asked for any of this is so that in case an attorney turns out bad, they can say that they ask for the entire life history of every applicant as a precautionary measure. In other words, it's just a 'cover their ass' move.
My undergrad college used to have a multi-day, written and oral "competency exam" that you had to pass to graduate. In my major (electrical engineering), it was one day written exam about general EE principles, one day written exam about your sub-specialty (digital, analog, power, etc.), and an oral exam in front of 2-3 professors on the third day.
You could take it multiple times (it was offered once a quarter) (it was so nice I took it twice!), but you didn't graduate if you didn't pass the "comp."
Tiocfaidh ar la!
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