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A Modest Proposal for Bar Exam Reform:

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.

Patent Lawyer (mail):
My idea for reform, when I was taking the bar, was a suggestion for federal subject area bar exams. These would be exams aimed around general subject areas that are primarily federal in nature--say, a test for IP law, a test for labor &employment law, a test for federal criminal law, etc. Passing the test would allow for admission to the federal bar within those subject areas, allowing a federal specialist to practice his specialty in any state.

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?
7.27.2009 1:24am
George Weiss (mail) (www):
hmm

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)
7.27.2009 1:25am
Patent Lawyer (mail):
Oh, and one more note--anyone who passes the New York bar could practice trademark or copyright law in New York despite knowing absolutely nothing about the subject; neither is tested on the exam.
7.27.2009 1:28am
Soronel Haetir (mail):
I do find it somewhat odd that state officials control who gets to walk through federal courthouse doors as an attorney. Almost seems like there should be a federal bar exam as well. Although federal courts do hear plenty of state law claims.
7.27.2009 1:35am
Ilya Somin:
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?

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.
7.27.2009 1:38am
George Weiss (mail) (www):
yeah-but isn't minimal competence for a law professor reasonably thought to be equal to outstanding ability by a law student?
7.27.2009 1:46am
Officious Intermeddler:
As someone who will be taking the CA bar exam beginning Tuesday, I heartily support Ilya's proposal.
7.27.2009 1:53am
ReaderY:
Perhaps the reform legislation could be titled "An act to promote corruption on the part of state bar examiners."

It's one thing to incent the law students to cheat on the test, but the test committee?
7.27.2009 2:01am
TKN (www):
Board certifications in medicine are a more practical way to test. But if you want to really remove hurdles, then you might as well eliminate the LSAT as well as a metric for getting in in the first place.

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.
7.27.2009 2:04am
Ilya Somin:
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.
7.27.2009 2:11am
Ilya Somin:
yeah-but isn't minimal competence for a law professor reasonably thought to be equal to outstanding ability by a law student?

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.
7.27.2009 2:12am
Ilya Somin:
It's one thing to incent the law students to cheat on the test, but the test committee?

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.
7.27.2009 2:14am
EvilDave (mail):
I would like to see the Multi-State Multiple Choice removed or at least reformed.
(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.
7.27.2009 2:36am
D.O.:
Are bar exams real gatekeepers for lawyers? Not admissions to law schools?
7.27.2009 3:00am
Cato The Elder (mail) (www):
Professor Somin,

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.
7.27.2009 3:10am
Cato The Elder (mail) (www):
I should clarify something - "novel content" would also include, for example, applying well-known legal principles to hypothetical (hence novel) situations. The adjective "well-known" should lessen the amount of "loading" on crystallized g, meaning the scored differences amongst individuals should load more on fluid g. Of course, the little munchkins of Father Time are always munching away at the latter once attaining the prime of one's youth.
7.27.2009 3:37am
jellis58 (mail):
Im about to take the CA bar and I agree with EvilDave. A lot of the MBE questios (at least the ones off old exams ive done) are poorly writen and require facts not in the problem. There are also a lot of questions that yield differnt answers depending on whether or not a certain event was forseeable. Sometimes what i thought was forseeable the bar examiners didnt and i would get the question wrong despite knowing the substanitive legal rule that was being tested. There was also a dormant commerce clause question where we were basicly supposed to guess whether SCOTUS would find that the states interest outweighed the burden on interstate commerce. Antoher reqired you to assume that a piece of evidence that would normally be character evidence qualified as modius operandi when it was far from obvious. The worst was a question about loud and bright stadium that also that was bothing some woman and I said she could sue for public nuisance and the answer and explaination said wrong its priate nuisance because shes the only one who was upset by it....I though it was a resonable assumtion that a loud bright stadium would bother some of the other neighbors (it did say she lived on a 50 acre farm but theres no reason there couldnt ahve been residents on the other side of the stadium)

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.
7.27.2009 4:49am
jellis58 (mail):
Im about to take the CA bar and I agree with EvilDave. A lot of the MBE questios (at least the ones off old exams ive done) are poorly writen and require facts not in the problem. There are also a lot of questions that yield differnt answers depending on whether or not a certain event was forseeable. Sometimes what i thought was forseeable the bar examiners didnt and i would get the question wrong despite knowing the substanitive legal rule that was being tested. There was also a dormant commerce clause question where we were basicly supposed to guess whether SCOTUS would find that the states interest outweighed the burden on interstate commerce. Antoher reqired you to assume that a piece of evidence that would normally be character evidence qualified as modius operandi when it was far from obvious. The worst was a question about loud and bright stadium that also that was bothing some woman and I said she could sue for public nuisance and the answer and explaination said wrong its priate nuisance because shes the only one who was upset by it....I though it was a resonable assumtion that a loud bright stadium would bother some of the other neighbors (it did say she lived on a 50 acre farm but theres no reason there couldnt ahve been residents on the other side of the stadium)

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.
7.27.2009 4:49am
jellis58 (mail):
opps sorry about the double post.
7.27.2009 4:55am
Mike C. (mail):
I find Ilya's primary argument regarding motivation to be on the money. Law is not the only profession to have what is essentially a guild system to control competition. Some portions of earth sciences practice and engineering (amongst others) have similar hurdles in place, and for exactly the same reason.

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.
7.27.2009 6:22am
FormerStudent:
Maybe professors ought to have to take an exam every year to demonstrate their competence. We could add practical exercises on grading exams in a timely manner, and such things as, say, personal hygiene as well. Any tenured professor who fails loses their tenure.
7.27.2009 7:00am
I Should Be Studying:
My name says it all.

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.
7.27.2009 7:23am
Speedy:

Former Student:

Maybe professors ought to have to take an exam every year to demonstrate their competence. We could add practical exercises on grading exams in a timely manner, and such things as, say, personal hygiene as well. Any tenured professor who fails loses their tenure.


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
7.27.2009 7:25am
/:
Although the test is horrible, it isn't the problem with the profession. Governmental regulation is. Without a competitor to State bars, they do things they couldn't get away with otherwise.
7.27.2009 7:40am
tvk:
How about making law professors take the LSAT again and see if they can get admitted to the school they teach?
7.27.2009 7:41am
Fub:
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?
Let's be clear on the consequences of such a rational approach. If every incompetent buffoon holding a position of government power were let go, we'd have to increase welfare budgets dramatically just to support their families in the manner to which they have become accustomed. Whether this cost would be offset by the benefit of governance by the incompetent buffoon who replaces them is the key question.
7.27.2009 8:04am
Public_Defender (mail):

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.

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.
7.27.2009 8:10am
corneille1640 (mail) (www):
I apologize if someone has brought this up, but wouldn't the members of bar exam boards know what's going to be on the exam ahead of time, and therefore find them relatively easier to take? Or are the exams made differently?
7.27.2009 8:23am
anothercommenter:
Professor Somin's post assumes that there is a body of substantive law that practicing lawyers all need to know, and that the bar exam should test for it to see if the lawyer is competent to go be a lawyer The assumption is incorrect.

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).
7.27.2009 8:33am
Downfall:
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.

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.
7.27.2009 8:37am
Isaac (www):
... and legislators should be required to prepare their own tax returns ...
7.27.2009 8:50am
Jim Rose (mail) (www):
If this were truly a "modest proposal" (i.e., "Swiftian"), wouldn't we eat the ones who flunked?
7.27.2009 8:55am
drunkdriver:
I strongly believe all jurisdictions should adopt reciprocity: if you've been admitted in one state and practiced continuously for, say, 5 years, the argument for making you take a second bar exam to be admitted to another state's bar seems to me very weak.
7.27.2009 8:56am
Connie:
I propose the same system be implemented for actuarial exams.
7.27.2009 8:58am
Gramarye:
I tend to agree with Downfall (and, coincidentally or not, I'm another bankruptcy guy). Aside from civil procedure, remedies (which isn't even required 1L curriculum at most law schools), and evidence (ditto), there isn't much overlap between what I and the others in my firm need to know. Some transactional contract guys can probably even get away without knowing much in the way of the rules of evidence.

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.
7.27.2009 9:04am
Tregonsee:
This is the same basic question that applies to most fields. The exams have little if anything to do with the profession. I have a good friend, a physician who had worked in emergency medicine for decades including heading the department in a county hospital, who has twice tried to get board certified. And I as a graduate physicist would not like to retake the qualifying exams I took 30+ years ago.
7.27.2009 9:12am
Ilya Somin:
I apologize if someone has brought this up, but wouldn't the members of bar exam boards know what's going to be on the exam ahead of time, and therefore find them relatively easier to take? Or are the exams made differently?

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).
7.27.2009 9:19am
Ken Arromdee:
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.

Ah. You want to create a conflict of interest on the part of the exam board members.
7.27.2009 9:20am
Hannibal Lector:
I have to agree with D.O. Bar exams are but one of two artificial barriers to entering the practice of law. The first is law school. This first barrier is much more expensive than the bar exam and -- based on what I've heard from law school graduates -- also much more wasteful of time.

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.
7.27.2009 9:23am
Houston Lawyer:
24 years this week since I took the Texas Bar Exam.

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.
7.27.2009 9:23am
MJH21 (mail):
The problem with the bar exam is that it bears absolutely no relationship to the practice of law. No practicing attorney would ever, ever, write a legal pleading or memorandum from his or her recollection of legal principles or case law, and they sure as hell wouldn't do it in completely different subject after completely different subject, at the break-neck pace required of the bar exam.

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.
7.27.2009 9:23am
mic deniro (mail):
Does anyone dispute that the people who pass the Bar exam are better qualified to practice AS A GROUP than those who don't?

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.
7.27.2009 9:37am
MCM (mail):
Oh, and one more note--anyone who passes the New York bar could practice trademark or copyright law in New York despite knowing absolutely nothing about the subject; neither is tested on the exam.


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.
7.27.2009 9:41am
Patrick216:
I can't get my hackles up about this. In my opinion, there already are too many lawyers. At least in my state (Ohio), I run across a ton of lawyers who are barely making ends meet and who will do just about anything to make a quick buck. The law schools all induce students to become attorneys by highlighting their rich alumni, etc. Little do they realize they are going to be stuck making $40,000 a year and working very hard to do it. Whenever I've encountered these kinds of guys, I generally find them to have an extremely low competence level and, when they're plaintiffs lawyers, to be fairly likely to engage in obstreperous and ethically questionable conduct during litigation. That's not to say that there aren't incompetent and ethically challenged lawyers in BIGLAW or in the ranks of the successful plaintiffs' bar or criminal defense bar (there are), but the problem seems to be more pronounced at that level.

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.
7.27.2009 9:52am
http://volokh.com/?exclude=davidb :

It's one thing to incent the law students to cheat on the test, but the test committee?
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.

Ilya I think you may have been a bit humor challenged here.
7.27.2009 9:53am
Widmerpool:
Perhaps we could return to those thrilling days of yesteryear when wanna-be lawyers apprenticed themselves to practicing attorneys and learned the ins and outs of the profession without benefit of either bar exams or law schools. This would, of course, require law professors to actually have to go out and--gasp--practice. Oh, the humanity! Next up: cats and dogs living together.
7.27.2009 10:04am
JasonF:
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.


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."
7.27.2009 10:13am
JimmyL (mail):
I don't mind minimum competency. I do mind having to cram tons of information into my head in a 2 month period for a closed book exam (especially when it would usually be malpractice to advise a client without doing some research).

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.
7.27.2009 10:21am
MarkField (mail):

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 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.
7.27.2009 10:28am
Connecticut Lawyer (mail):
Ilya,

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.
7.27.2009 10:31am
DiverDan (mail):

The problem with the bar exam is that it bears absolutely no relationship to the practice of law.


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.
7.27.2009 11:11am
loki13 (mail):
The bar exam is useful for the following reasons:

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.
7.27.2009 11:23am
Doc Merlin:
The bar exams exist to provide a high barrier to entry for legal practice NOT to ensure that lawyers are competent. Like most occupational licensing, it exists to artificially restrict the numbers of practitioners and thus artificially raise wages.

mmmmmmmmmm enjoy that delicious, delicious rent seeking.
7.27.2009 11:37am
The Cabbage (mail):
Bar Applicant gains ten pounds while studying for the bar. Bar Applicant's wife brings suit against Bar Examiners for alienation of the right to sleep with someone who doesn't look like a fat tub of goo.

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
7.27.2009 11:40am
Hugh59:
I have passed 3 bar exams: Ohio in 1985, Florida in 1986, and the US Virgin Islands in 1999. I had to take the MBE each time. One of my professors described the bar exam as "all that stands between you and a license to print money."

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.
7.27.2009 12:09pm
illram:
From what I was told before going into the CA Bar Exam by numerous bar teachers, the examiners were looking more for your ability to do a decent analysis of a fact pattern rather than your ability to recite the rules. Our Barbri practice exam and essay exam lecturers constantly told us to be sheep, (i.e. do not stray from the usual IRAC style) make up a rule if you don't know it, and USE THE FACTS. (Emphasis because they were usually screaming those last three words.)

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.
7.27.2009 12:11pm
dale gribble:
The civil procedure Missouri bar review lecturer said "all you need to worry about is service of process and the long-arm statute." The bar exam state portion dealt with all kinds of different questions including statutes of limitations, immunity of parties, etc, things law students dont worry about. When the time ended he said "that'll teach you to listen to those bar review people."
7.27.2009 12:21pm
anon623520:
I am a practicing attorney who is taking the bar again. (Working in house and thought it would be best to finally get certified in my resident state.) The striking thing about going back to the bar -- after having practiced for a while -- is the amount of "bad" law on the exam: it takes what are incredibly complex, nuanced areas and tries to pigeon hole them into an easily digestible nugget. The problem being, that's not how law is practiced. I can't tell you how frustrating it is reading the suggested answer to hypo questions when you know the "rule" being espoused would never be followed in by any competent tribunal.
7.27.2009 12:24pm
Ben P:

The civil procedure Missouri bar review lecturer said "all you need to worry about is service of process and the long-arm statute." The bar exam state portion dealt with all kinds of different questions including statutes of limitations, immunity of parties, etc, things law students dont worry about. When the time ended he said "that'll teach you to listen to those bar review people."


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.
7.27.2009 12:30pm
Virginian:
I vote for hazing, pure and simple. "We had to go through this crap, so you do too!" Why else would they make you wear a suit to take a !@#$% exam (as they do in VA)?
7.27.2009 12:46pm
George Weiss (mail) (www):
virignian wins the thread
7.27.2009 1:03pm
Virginian:

virignian wins the thread


My first thread win! I am honored and humbled!
7.27.2009 1:05pm
Mike Brown (mail):
My biggest complaint about the MBE when I took it, nearly 30 years ago now, was how much of it was not just useless but harmful. Nearly every bar review lecture had at least one point where we were told, "remember the rule this way for the multi-state day, and forget it on the next day, because New York law is exactly opposite and they're sure to test you on the points where New York differs from the rest of the country."

Of course, that may be as much a complaint about New York state as anything else.
7.27.2009 1:07pm
MarkField (mail):

CLE is a bigger wast of time and money than the bar exam.


Agreed.

Also agree that the MBE is actively harmful.
7.27.2009 1:19pm
Downfall:
Virginian, are you serious?? Is that policy on the web anywhere? Do the turn you away if you show up in a sports jacket? I have never heard that before. At my NY bar exam, there were lots of flip flops.
7.27.2009 1:22pm
George Weiss (mail) (www):
re: virignia dress code for bar exam

http://www.vbbe.state.va.us/pdf/DressCode.pdf

and

http://www.vbbe.state.va.us/letter.html (see the bright red bold text)
7.27.2009 1:38pm
DJR:
Hardly "thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use." I took the Virginia Bar and made a flashcard for every rule I thought I needed to know. There were a total of 1,300 cards, including the arcane and otherwise.
7.27.2009 1:43pm
PatHMV (mail) (www):
I would like to see more analytical response to the legitimate reasons for a bar exam given by anothercommenter and others above.

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.
7.27.2009 1:51pm
jwhiii (mail):
I do think a bar exam of some sort is a good idea. I see nothing wrong with demanding that aspiring attorneys possess at least a minimum level of legal knowledge and analystical ability. However, states need to approach the question of legal practice differently. Just for the purposes of this discussion, I looked up a recent Virginia bar exam.

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.
7.27.2009 2:00pm
Virginian:

Virginian, are you serious?? Is that policy on the web anywhere? Do the turn you away if you show up in a sports jacket? I have never heard that before. At my NY bar exam, there were lots of flip flops.


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.
7.27.2009 2:05pm
Virginian:

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.


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!
7.27.2009 2:15pm
George Weiss (mail) (www):
yeah i remeber that about the suit rule bruhaha right about when i started law school. insane..along wit hthe other vairous burocratic features of the bar process such as:

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.
7.27.2009 2:22pm
Kenvee:
I've got to agree that CLE is a big waste of time. It can be useful, but half the people in the room are just there because they need their hours and don't care.
7.27.2009 2:39pm
Bob from Ohio (mail):
Wah, wah.

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.
7.27.2009 2:45pm
Georgian:
My state's bar exam (not the Multistate part) was designed to see if one could spot the big issues and write in an organized fashion. Frankly, that is not too much to ask.

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.
7.27.2009 3:07pm
Fub:
One health issue from essay or analysis portions of bar exams -- if you elect to type instead of handwrite essays, protect yourself properly or the exam can be hazardous to your hearing.

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.
7.27.2009 3:25pm
cmugirl (mail):
Add to that...

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).
7.27.2009 3:30pm
gully (mail):
I propose an anti-trust lawsuit against the bar association. After all, if you HAVE to be a member in order to practice law, isn't that an illegal monopoly?
7.27.2009 3:38pm
Ex parte McCardle:
For decades, the bar exam here in Georgia was entirely oral: "What, sir, is the Rule in Shelley's Case?" Scary.
7.27.2009 4:50pm
FormerStudent:

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.


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.
7.27.2009 5:18pm
john dickinson (mail):
This proposal is certainly appealing in a Judge Judy kind of way, but I seriously doubt it would have any significant impact on the actual design of the test.

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.
7.27.2009 5:48pm
ohwilleke:
I'm not at all sure that the empirical premise of the post is correct. I've encountered multiple reasonably successful mid-career practitioners who have had to take a bar exam because a state where they would like to practice does not offer reciprocity. While the preparation involved is considerable (although not nearly as great as that of a law student taking it for the first time), the failure rate is very low; most pass with flying colors on the first try.

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.
7.27.2009 6:17pm
Steve2:
Just to point out to the several who said Law School's an obstacle that should be ditched... I don't know about any other states, but law school remains optional in the Commonwealth of Virginia. You can still do that apprenticeship thingy, as provided for in the §54.1-3926 of the Code of Virginia. It requires 18 hours a week of apprenticing for 40 weeks a year over 3 years, and you can do it with an attorney or a judge. You do have to be a college graduate of some sort, though, but the text of the statute doesn't say anything about it mattering whether your Bachelor's degree is in Art or Aerospace Engineering.
7.27.2009 6:46pm
Public_Defender (mail):


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 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.


Hugh59 writes:

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.

Bob from Ohio agrees:

I do concur in the absolute waste of time and money in CLE classes.

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.
7.27.2009 7:20pm
Bruce Hayden (mail):
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.
I like this, with the proviso that affirmative action is not an excuse - AA hires would be held to the same standards as the rest of the faculty.
7.27.2009 8:24pm
Brian G (mail) (www):
What do you mean the bar has nothing to do with the practice of law? Tom Cruise was able to get himself and his brother out of a big jam by remembering that he had a tax fraud on the bar exam. So there goes your theory.
7.27.2009 8:28pm
Public_Defender (mail):

I like this, with the proviso that affirmative action is not an excuse - AA hires would be held to the same standards as the rest of the faculty.

Fair enough. The conservative and libertarian AA hires will be treated the same as everyone else.
7.27.2009 8:31pm
Xanthippas (mail) (www):
I don't know how Somin's proposal isn't being met with 10% agreement here. Bar exams are a tremendous waste of time, money and effort, and do not reflect an ability to practice the law with any measure of competency. This is a simple fact, and only institutional inertia and a gaming of the system by state bar associations perpetuate their use.
7.27.2009 8:39pm
Bruce Hayden (mail):
I have passed three bars (2 states + USPTO) so far, and need to take another one soon, maybe, when I have the chance to study for it.

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.
7.27.2009 8:41pm
Cato The Elder (mail) (www):
Bar exams, like any test of abstract reasoning ability, do a fair job of separating capable lawyers from the herd because differences in ability and performance across jobs are best predicted by the psychometric general factor of intelligence. Look, I would venture that a high school SAT test administered after law school commencement could be as discriminating as the bar exam. In fact, I'm fairly positive that merely a raw IQ test like the Raven's Progressive Matrices might be at least as good or better job than the bar at discriminating laywerly capability (at least amongst those who possess a roughly equal knowledge base, not widely disparate). That idea might seem deeply counter-intuitive, but that's what the science of psychometrics has consistently been telling us. There is a reason that financial organizations such as hedge funds and software start-ups such as Google give orally administered puzzles, brain-teasers, the like to applicants during their hiring process -- it's not just some cultural habit for their amusement. The actual content of the bar exam is irrelevant. The talented and the motivated will master it all the same.

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?
7.27.2009 9:12pm
epeeist:
I have some problems with this suggestion, not least being that I think it a good thing that some states (New York, California, and I think Virginia, 6 in total?) allow people who do not have a law degree to become lawyers (after a certain amount of time studying under a judge or lawyer you become eligible to write the bar exam, in New York you need one year of legal education also). I think I read in the ABA Journal within the past year about a Virginia supreme court justice who originally qualified for the bar in this way, never having gone to law school.

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.
7.27.2009 9:35pm
Randy R. (mail):
When I applied for admission to the New York State bar, the application asked for just about everything -- every place I ever lived, every job I ever held, every aspect of my history up to that point. OF course, there was never any one who actually checked on any of this -- the application had to be at least 20 pages.

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.
7.27.2009 11:33pm
Virginian:

For decades, the bar exam here in Georgia was entirely oral....


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."
7.28.2009 12:00am
jwhiii (mail):
What if bar examiners simply had more empathy for applicants?
7.28.2009 11:57am
FWB (mail):
Isn't it always about membership in "THE CLUB"?

Tiocfaidh ar la!
7.28.2009 12:37pm
The Law:
While you're at it, lets do away with the LSAT and bring back Interviews at Law Schools...
7.28.2009 4:57pm

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