Dan Solove offers a tongue-in-cheek theoretical analysis of the Multistate Bar Exam here. An excerpt:
The Bar exam draws heavily from Ronald Dworkin, who argues that there are indeed answers to even the thorniest legal issues. Departing from H.L.A. Hart’s open texture of law, where there are pockets of uncertainty, for Dworkin, there is an answer to all legal questions. And so, too, on the Bar. Every question has an answer.
The Bar states that one is to choose the best answer, and thus it does at least recognize that right-versus-wrong is too simplistic a way to understand the law. But what does “best answer” mean? The exam states that all questions should be answered “according to the generally accepted view, except where otherwise noted.” We’re back to Hart again, with a kind of rule-of-recognition for the rules on the Bar: The best answer is the generally accepted view. But among whom? Lawyers? Judges? Academics? The public? The Bar doesn’t tell us.
I wondered about that when I studied for the bar exam, too. The answer: generally accepted among people who work at BarBri.
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