Wednesday, May 25, 2005
Abolish the Bar Exam
Despite my enjoyment of the Bar Exam as a work of jurisprudence, I believe that the Bar Exam should be abolished. It prevents mobility among lawyers, making it cumbersome and time consuming to move to different states. It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter. In short, the Bar Exam is an unproductive waste of time.
My guess is most all lawyers would agree. So why does the Bar Exam persist?
Perhaps as a way for states to restrain competition among lawyers . . . but this would be an impermissible purpose. Perhaps inertia. Perhaps because of the “we suffered, now you must suffer too” mentality. I can’t think of good reasons for retaining the Bar Exam. Yet this misery-creating, time-wasting ritual survives -- even thrives -- despite the fact that it has no valid justification and has achieved near universal enmity.
In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain amount of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers. I think that this is much better than wasting most of a summer studying for a meaningless test.
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Tracked on May 26, 2005 7:42:25 AM
» Abolish the bar exam? from Fumare
I thought this was from a recent law school graduate who has become cynical while pondering the next two months of his life. To my surprise, I discovered it was written by a professor at GWU Law School. [Read More]
Tracked on May 29, 2005 6:57:15 PM
» Abolish the Bar Exam from Concurring Opinions
The recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit... [Read More]
Tracked on Dec 5, 2005 12:08:39 PM
This is an interesting idea, however you have to wonder if the bar exam actually does serve a useful purpose (actually a second useful purpose, given that its first useful purpose is to serve as a great treatise of legal philosophy): weeding out unqualified lawyers. A quick look at USNEWS' website ranking stats shows that the tier 1 schools boast bar passage rates of %90+, but that many tier 4 schools only pass %50 or so of their grads. Also, if I remember correctly, there is a study that shows a correlation between grades (especially at tier 2-4 schools) and bar passage rates. Based on that type of data, it does look like the bar exam tends to pass more qualified candidates and hold back unqualified ones.
Of course, some of your other criticism may hold true. It may be that the bar exam tests impractical knowledge; I have no real way of knowing since I haven't practiced law, taken the bar exam, or even attended one law school class. However, you can certainly address this problem by making the material on the test more relevant to day-to-day practice; I don't see why the only solution to the bar's outdatedness has to be to get rid of it entirely.
Of course, if I ever fail the bar, I'll probably agree with you 100%.
Posted by: Jeff V. | May 25, 2005 2:04:32 PM
Isn't bar passage one of the things considered in assessing and accrediting law schools? If there's no check, ultimately, on the quality of the graduates of the schools, then what will prevent marginal law schools from further lowering their standards?
Who studies that hard for the bar exam? I mostly felt guilty for not studying while I was enjoying a beautiful Chicago summer. Could I blow off my pro bono obligations except for a couple weeks at the end of the summer?
Posted by: Thomas | May 25, 2005 2:51:08 PM
I'll agree with Jeff. As a Columbia grad, the bar was just a formality. It's not like anyone from Columbia or Harvard or Chicago ever fails. (Well, sometimes they do -- I can't really say why, but I suspect that it has to do with unusual circumstances for those applicants).
But as a clerk and as a lawyer, I've seen some awfully bad lawyering done by some practicing attorneys.
For me, the bar exam is like the driving test. It's not like anyone with a basic idea of how to drive can't pass the driving test, with ease. (Oh no! I've got to parallel park!). So for most of us, it's a minor nuisance that doesn't really show much.
But for the 10% or 20% for whom the driving test is an actual impediment -- well, let's just say that I'm very, very glad that they're _not_ licensed to drive.
Posted by: Kaimi | May 25, 2005 2:54:07 PM
The bar exam tests in the largest possible swaths of knowledge. It, to a great degree, forces every attorney to be a generalist to a certain extent and to have the minimum knowledge of how to handle, in the abstract, just about any kind of case that can walk through the door. Our ethical rules presume that every attorney is competent to handle most cases. The bar exam reflects that. Getting rid of the bar exam, the professional license, is a mistake. The practice of law is not and should not be the right of anyone. It should be a priviledge extended by the State. The State, in the judiciary, should retain oversight ability of the entire profession. While I have bemoaned the fact that I don't want to take another bar exam and it will be several more years before reciprocity is possible for me, I do not believe the legal community gains anything by reducing the practice of law from a solemn duty to the end result of some classes.
Posted by: Joel | May 25, 2005 2:59:59 PM
For me, the biggest problem is not the exam itself, but how state licensing boards use it to limit lawyers' options -- such as mobility.
For example, anyone who wishes to practice in Oregon has to take the entire exam in the state regardless of years of practice or taking and passing the national portion the previous time. In Illinois, bar passers aren't given their score -- they have to apply elsewhere and hope their score is high enough for reciprocity in states allowing it.
Posted by: r | May 25, 2005 3:29:00 PM
I have to disagree. In that regards, I should note that I took a second bar exam when I would have qualified for reciprocity (though the bar exam was about three or four months faster).
In both Texas and Utah the bar exams relate to the actual laws of the states, including procedural laws not common elsewheres. Further, I've met a lot of lawyers who did not learn the law until they took the bar exam.
Finally, a test seems necessary when you interact with people who have passed law school, but failed a bar exam.
Posted by: Ethesis | May 25, 2005 3:56:25 PM
All of the comments seem to reflect an unexamined assumption that the bar exam is materially related to the practice of law. I think the post itself attacks this assumption, and with good reason. An earlier post asked how much of what you learned in law school appears in your everyday practice. I would ask the same question about the bar. How much of the law that you learned for the exam appears in you everday practice.
Additionally, the fact that students from higher ranked schools and students with better grades perform better on the bar does not lead directly to the conclusion that the bar exam is a good evaluator of future legal performance, only that it is a good evaluator of past admissions requirements. The fact that hardly anyone from Columbia, Harvard, Chicago, or Penn (my own alma mater) hardly ever fails does not lead to the conclusion that everyone from those institutions who passes the bar is a competent and qualified lawyer. And, if the bar exam is not sufficiently related to the practice of law, one possible conclusion is that not everyone who fails the exam is incapable of becoming a competent attorney.
Posted by: Tshaka Randall | May 25, 2005 4:29:55 PM
I think the same sort of responses regarding the classes that are useful also apply here. Did taking the bar exam provide you with any skills that you find useful in your legal practice? Did the procedure of the exam lend itself to anything rather than only the substance?
I know someone who would have been a truly remarkable advocate. She, unfortunately, has dissiculty with standardized testing procedures. I agree that passage of the bar exam is not a benchmark, bright-line test of who will be a good attorney. You can pass the exam and be a poor attorney and people who do not pass the exam may have the abilities to be far better attorneys than those who pass.
As was revealed in the discussion of the structure of law school, my personal view of the law as a profession significantly factors into this. I do believe that practicing law is a higher calling and that the State is right to regulate it. I believe that the law is qualitatively different form other fields. The bar exam, aside from being a shared experience of pain between lawyers and a motivation for law students to be competent generalists (as far as the MBE goes), is one of the last hurdles the state puts forth. Passing the bar exam is not about raw intellect or about grades, but about willpower. To pass the bar, one must work at it. If you want to practice law, you must want to practice law. While some people are disadvantaged by the format, such as my aforementioned friend, that is a price that is paid. That is one of my interpretations of the bar exam.
Posted by: Joel | May 25, 2005 5:03:03 PM
It persists because Bar/Bri pays the state bars, much the same way that interest groups pay Senators.
Ah, wouldn't it be funny if it were true....
Posted by: Alan T | May 25, 2005 5:11:36 PM
As a Columbia grad, the bar was just a formality.
That is the most arrogant thing I've read in a long time. Thanks for reminding us why people hate lawyers.
I hope that if and when you begin teaching (presumably not at Columbia) you'll let your students know how much better you are because you attended a superior law school.
Then again, your assertion that "It's not like anyone from Columbia or Harvard or Chicago ever fails" is facially wrong, as pages 8-9 of this document show.
Perhaps, "As a Columbia grad," verifying facts is also "just a formality."
Posted by: 42 U.S.C. 1983 | May 25, 2005 6:00:41 PM
I think the same sort of responses regarding the classes that are useful also apply here. Did taking the bar exam provide you with any skills that you find useful in your legal practice? Did the procedure of the exam lend itself to anything rather than only the substance?
Finally, the relevant question!
Like I said in the comments to the later post on this... I've taken four of the silly bloody things (why, why, WHY do I keep moooovvvinnnggg?) so I'm both unusually experienced and unusually irritable at the absence of sane reciprocity provisions that would permit me to live my nomadic lifestyle without taking a damn bar every year.
For each of those exams I studied at least some (to a greater or lesser degree). They were from an astonishingly wide diversity of states with astonishingly different legal systems (Massachusetts, Oregon, Louisiana[!!] and Virginia [which still has the separation between law and equity for christ's sake! and no promissory estoppel! or negligent supervision tort!]).
Do you know how many times I've used information learned or tested in the course of bar study in actual practice?
MAYBE twice. Both remembering minor points of law that I needed to do the research to confirm anyway.
Posted by: Paul Gowder | May 25, 2005 9:54:00 PM
I'm sorry to come across as arrogant. That's not my intent. It's just a factual statement. For the New York Bar, which is the one most of its grads take, Columbia's pass rate is well into the 90's. (One site, which I found by a quick google, shows a 93% pass rate for 2003. I don't believe recent numbers are much changed. And this is similar to the pass rates of Harvard, NYU, Chicago, etc. That's just life.
As for whether this makes me arrogant, well, I don't think that I'm better than my students. I certainly don't think that I'm better than my students because my classmates, as a group, didn't have trouble on the bar. (Geez, what a strange hook to hang any sort of assessment on -- "my classmates are better than yours.")But the fact is, the bar wasn't a big deal for me, or, per the numbers, for most of my classmates. And that affects how I view the necessity for the bar.
I also must say that it's curious how you use a selective portion of my comment to make it look like I've said something (factually incorrect) that I haven't said.
Take a look at my initial comment: "It's not like anyone from Columbia or Harvard or Chicago ever fails. (Well, sometimes they do . . ."
I limited my statement in the VERY NEXT SENTENCE. You ignored that limiting statement and acted as though I'd made a broad assertion that I simply didn't make.
You took out the first segment and called it factually wrong, despite the fact that I made clear in my VERY NEXT SENTENCE that I was overstating for effect.
So yes, you caught me. My obvious overstatement -- which was explicitly identified by me as an overstatement at the time I made it -- was indeed an overstatement. And yes, if taken without the limitation (that immediately follows it), it would be factually incorrect. I have indeed made a statement that can be selectively cited to make it look erroneous.
Woe is me.
Posted by: Kaimi | May 25, 2005 10:52:13 PM
I'll agree with Jeff. As a Columbia grad, the bar was just a formality. It's not like anyone from Columbia or Harvard or Chicago ever fails. (Well, sometimes they do -- I can't really say why, but I suspect that it has to do with unusual circumstances for those applicants).
Most common reason: they are taking the exam as a second state bar at the same time they are taking another state's bar exam. They pass one, fail the other. I think this happened to either Bill or Hillary Clinton -- can't remember which -- who passed Arkansas but failed New York or DC.
Posted by: alkali | May 26, 2005 3:38:49 PM
In a more serious response, I know that the State of Oregon briefly discussed abolishing the Bar Exam several years ago. The biggest opponent to the move was the state's three law schools. I don't believe they wanted the responsibility of regulating the profession.
Posted by: Alan T | May 26, 2005 7:27:25 PM
I'm all for abolishing the exam. I ranted about it here:
The bar exam doesn't purport to teach real skills or even real law. It is an exercise in cramming, rote memorization, and multiple choice test taking. Even its defenders don't seem to be saying that the test is useful or relevant. There are better measures of testing knowledge, better measures of testing dedication (e.g. pro bono service, which would actually teach skills and benefit clients), and better ways of protecting clients from incompetence. Does the bar exam really do any of these things?
Posted by: Scheherazade | May 26, 2005 9:02:16 PM
It was widely reported after his death that John F. Kennedy Jr., a graduate of NYU Law School, took three times to pass the NY bar exam. Maybe Kaimi is right, and it had to do with "unusual circumstances" like the pressure of dealing with anonymous grading when your last name is "Kennedy," but I prefer the theory that some people, regardless of pedigree, are just not cut out to pass this rigorous exam their first few times out. What's crucial is that -- assuming they don't quit in frustration -- they do eventually pass.
Like Paul, I have had the frustrating experience of taking multiple bar exams because I had to move. (My first state was Oregon, incidentally...boy do I wish they had abolished the exam!) I wonder if we're talking around the real problem, though. What frustrated me more than the essay portion of each exam was the fact that I had to take the MBE. Twice. Yes, due to reciprocity issues. I think it's simple to bifurcate the MBE and the rest of the exam. And while the MBE may well be in need of reform, or abolishment, an essay exam that tests on the substantive law of that state is valuable on many levels. First, it forces practitioners to learn something about this particular state's laws. Studying for the Civ Pro essays each state was particularly enlightening, and I suspect I've used the knowledge I gained from that study time repeatedly in practice. Really, all of the state distinctions are worth being aware of, if for no other reason than the ability to issue spot later on. Having a light bulb go on during a client interview because you recall something weird from bar study about the elements of this particular tort, or whatever, can prove valuable. On another level, such an essay exam allows the state bar to assess, on as level a playing field as possible, the general competence of applicants. As Kaimi so correctly pointed out, schools differ. So do their grading policies and, frankly, their passing policies, despite ABA accreditor oversight.
On the other hand, the MBE has problems. Despite the positive spin put out by the PR team at the NCBE regarding the efficacy of the MBE, it's relevance, etc., I disagree with them, and I suspect most of those who have sat for the MBE -- particularly those who have done it more than once -- are with me. The first problem is that it is the MULTISTATE Bar Exam and therefore, by definition, cannot test on the law of a particular state. Instead, the examiners have settled on a scheme more or less irrelevant to takers in every state: the "common law" of torts, contracts, and property, the federal rules of evidence and federal constitutional law, and a strange mix of common law and the ABA's "model code" when it comes to criminal law. The only one that is relevant to takers is federal constitutional law, which extends to the procedural questions under criminal law and evidence. The rest? A big fat waste of time. But since it's "the multistate," this is the best the NCBE can do. This reason alone, though, is probably not enough to do away with the MBE. After all, nothing about the irrelevance of much of the material is new.
What is new, though, is the lengths the NCBE seems to go to try to make the MBE difficult. Google the MBE and you'll find a consensus out there that the exam has steadily increased in difficulty over the past 20 or more years. The only change to offset this has been the commitment to ask only a certain number of questions from each subject area (33 or 34). I don't know what it was like before, but the change has no practical effect on exam day. Because criminal procedure and certain evidentiary issues, for example, are so closely tied to constitutional law, there were a number of questions on my MBEs that could have been counted among the con law, evidence or crim pro questions. Counting was useless. I guess knowing that the subjects will be tested equally does help when rationing study time, but that's about it. Other than that change, though, the exam has only gotten more difficult, trivial, obscure, and any other adjective I can think of. Ironically, this problem has been exacerbated by the very review programs that exist to help us pass the MBE. This is because such programs are said to have scouts who take the MBE and report back on the questions asked each exam. Then those programs publish volumes packed with practice questions, based on prior MBEs, which are meant to help (and do help to a large degree) prepare us for the next MBE. Meanwhile, the NCBE exam writers get hold of the books and do their best to...you got it...trick us. One program in particular participates in this vicious cycle. I won't mention any names, but many students consider this program to be their Primary Multistate Bar Review. Take a look at the questions this program publishes in its prep books, then take the next MBE. Guaranteed, you're going to see some virtually identical fact patterns, only they will be changed ever so slightly as to render the answer on the MBE different than the one in the prep book. Does the NCBE have the right to alter the questions each exam? Of course...but this is emblematic of the trickery employed by the NCBE.
Similarly, the examiners realize that the prep programs leave students well-versed in a certain range of each subject matter, and therefore try to go outside that range where possible. Or the examiners will find the few discrepancies between programs and seek to capitalize on those. These tactics result in questions whose answers are not contained in the primary prep materials (i.e., MIG charts or the Conviser Mini Review) and certainly are not covered in the CD or in-class lectures. This effort to scout the outer realm of a particular subject area results in trusts and wills questions, for example, being couched as property questions (but whose answers would never be covered in a law school or bar prep property class), or similar anomalies. Were I more jaded than I already am, I'd say that the examiners mandate that a certain percentage of questions be on material not covered by the latest editions of the primary bar study program materials...and the rest must be asked in such a way as to trick all but the most careful readers. Finally, there are some MBE questions that simply require a guess between two equally-appropriate (though neither spot-on) answers. For those who need an illustration, imagine a multiple choice question where two possible answers are easily eliminated and the remaining two possibilities are "maroon" and "burgundy," and the questions asks "Which of these is red?" You get the picture.
Sorry for the thesis, folks, but for these and other reasons I do think the MBE needs to be looked at seriously. And no, I'm not someone who failed and has a vendetta: I got a 171 on the Feb 2005 MBE, and I didn't even go to Columbia. But that's only because I like trivia...I still think it needs to be improved or dropped.
Posted by: Ryder | May 29, 2005 9:39:37 PM
I think the MBE is nothing but a pile of idiotic trick questions at this point -- including some just total nonsense. My absolute favorite in the J.T.N. category is the "pick the best answer" question that penalizes you for actually knowing the law because all the answers are wrong.
They'll have questions not too far from this:
Joe, a crack dealer, is selling crack to an undercover police officer in New York City. One of the prostitutes he pimps interrupts him as he is falsely claiming that the crack is not cut with any clorox. He beats up the prostitute. Joe is arrested by the New York State Police's anti-drug task force. He comes to you for advice. Which is the best argument he can raise to challenge any portion his arrest for assault, crack dealin', pimpin' and fraud?
a) New York's laws against crack distribution violate the dormant commerce clause;
b) His arrest for assault on his prostitute impairs the obligation of contracts between him and his prostitute, since the contract between the two explicitly permits beatings;
c) Prostitution is protected by the right of privacy and substantive due process;
d) Joe's claim that the crack was not cut with clorox impermissibly penalizes him for protected speech.
What on earth is one to answer on one of those questions? All the answers are wrong, wrong, wrong! How do you pick the best wrong answer? (I'd probably go with "c" on this one on sheer Lawrence v. Texas principles...) And what on earth does the ability to guess which absurdly wrong answer the bar examiners think is closest have to do with competence to practice law? A question like that is sheer randomness.
Some of the questions -- particularly the con law ones -- tend to look like that. And a bunch of other dumb trickeries besides.
Posted by: Paul Gowder | May 30, 2005 10:44:55 AM
Some of us work for bar review courses and would lose our jobs if your wish came true. We have children to feed, and student loans to repay. Your wish is very selfish and mean spirited. The bar exam is good for society, and good for my family. It has survived greater threats than you and it will survive you too.
Posted by: Anonymouse | May 30, 2005 11:40:35 AM
Anonymouse: by that logic we shouldn't abolish anything. Strip-mining? Employs people. Clear-cutting? Employs people. Lobotomies? Employ people.
Posted by: Paul Gowder | May 30, 2005 11:46:59 AM
I see that no mention was made of the California Bar Exam. With a pass rate often times no greater than 50% in July, and under 40% in February, it is pretty clear that the California State Bar is running one of the largest legally sanctioned protection rackets in history.
A three day exam? Why? The torture factor? Six one hour essays, and two three hour performance exams? Why?
When California started the performance tests, they were put in place to help minorities pass the bar. The theory was that minorities are not as good at standardized testing like the MBE, and had trouble with the essay portion of the exam as well. But government agencies were affirmative action employers, and had given a great many minorities clerking jobs at the DA, PD, County Counsel's Office, etc. By working there, they would develop skills to do well on Performance Exams.
Good in theory, but the bar examiners simply converted the performance tests to another way to give applicants a 100 or a 110, leading them straight to a failing score on the bar.
Grading procedures? Secret. Scaling? Secret. Initial grades before re-read? Secret. MBE Scores? Secret. Everything about your grading in CA is SECRET. Why the secrecy? They re-write new questions each time anyway. What does it hurt to bring the scoring and scoring procedures out in public?
What it would do is show the how and why of the 50% pass rate -- that the scaling is not based upon test difficulty, but on a predetermined pass rate -- keeping the numbers of lawyers in the state down, and fees up.
I passed the brutal beast called the California Bar Exam...not the first time, not the second time, but I passed it.
I pity those who get caught in it's web, I wish that punishment only upon my worst enemies.
Posted by: Justice Scalia | May 30, 2005 1:23:15 PM
PGA Tours (Scalia, J. and thomas, J., dissenting) ('amateur passers of the California Bar Examination') Yes, Justice Scalia, there really are amateur takers of the California Bar Examination, but not by choice--these people have struggled for years for professional status. E.g., 1997, 7200 learning disabled graduates sued the California Bar Examiners. Where are they today?
For people with disabilities such as autism, learning disabilities, cervical mobility disabilities, the only thing these brutal Bar Examinations measure is the ability to keep paying for them until one passes. Sometimes this ability to afford the ever escalating price tag for entry into the profession is not possible due the the severe nature of a disability.
There is no such thing as walking out of an ABA-accredited law school, diploma in hand, immediately licensed, and ready to go to work, like doctors. Once, a disabled person graduates and the financial aid is no longer available, the person may settle into more than a 15-year struggle to work in the profession he or she earned by years of study and committment.
For people with disabilities who would practice law "with" reasonable accommodations, the same accommodations provided to pass the Bar Examination, such accommodations may be unavailable from employers, leaving the person's only ability to earn a livelihood resting on accessibility to the license itself, a ticket to self-employment (where one can pay for one's own accommodations).
Meanwhile, hundreds of thousands of dollars of student loans go unpaid (x the number of people excluded), loans taxpayers entrusted to a system that is supposed to enable graduates to achieve the income upon which the degree (and license) is based, but fails them. A system hamstrung by Bar Examiners and Bar Examinations in many States who exercise unbridled discretion to reject bar applicants for as little as not liking their looks.
Some disabled people went to law school in the 1980s-1990's as single parents, in the case of women, many were not able to collect child support owed them by their ex-husbands (before child support laws were strengthened), and struck out on their own by trying to obtain an education to position themselves to earn an income to support their families. Children have become the victims of the present ill-structured bar admission system through exclusion of their parents.
How absurd does it get? The California Bar erects every obstacle possible to the disabled, delaying bar admission, denying admission based on inability to repay student loans, on the inability to obtain work in the legal profession due to legal employers refusing to comply with Title I of the Americans With Disabilities Act and accommodate the disabled. Chief Justice Ronald M. George and his Clerk, Frederich Olrich, of the Califoria Supreme Court refuse to allow anyone to be licensed in that State if they have autism, learning disabilities, no arms, or are quadraplegic and utilize modern technology consisting of voice-recognition software to prepare their written pleadings.
Florida Bar Examiners refuse to implement Performance Testing they were directed to implement more than 8 years ago by a Committee appointed by former Florida Supreme Court Justice Rosemary Barkett (now of the Eleventh Circuit Court of Appeals).
A bar admission problem based on illegal exclusion of the disabled in California becomes a barrier to entry in Florida and other States, as moral character criteria in Florida, for example, allows denial of admission when another State has excluded a disabled person, thereby perpetuating the injury.
Every excuse conceivable, and time marches on, student loans default, children grow up in poverty, the disabled are shut out of the opportunities every one else takes for granted.
All over what? -- a bar admission process that does not measure the ability to do what lawyers actually do in the practice of law, where no one understands computer technology that assists the disabled to compete equally (and a tax credit offsets the cost!) -- and an Eleventh Circuit Court of Appeals that refuses to follow Tennessee v. Lane in State Court services, and would never consider following Lane in the area of Bar Admissions/Bar Examinations (even though this is the ultimate Court service).
There is a case involving more than a 15-year bar admission exclusion of a disabled person by the California Bar (the California Supreme Court refuses to even docket her case and give her an appellate hearing), and more than a 3-year exclusion in Florida (Florida Bar Examiners refuse to make their application forms accessible to voice-recognition and refuse to provide a Performance Test). Why? They refuse to give any legitimate, good faith answer, except prejudice and stereotypes.
The Eleventh Circuit Court of Appeals, after refusing to apply the protections of Title II of the Americans With Disabilities Act to prison inmates, at the end of this month (May 2005), in a little known decision, 'overruled' Tennessee v. Lane and eradicated reasonable accommodations of all Bar Examinations in the geographic area of the Eleventh Circuit Court of Appeals for every disabled bar applicant.
Rather than progress toward a more diverse, inclusive legal profession, California, Florida, and the Eleventh Circuit Court of Appeals have turned back the clock to a time before Jim Crow, and dared the Supreme Court to take up this case involving a nobody disabled person, single mother who never achieved her goal of becoming a lawyer -- because she is disabled.
At the time the Constitution was written, there were no such bar admission barriers. Bar admission was done by an oral interview with a judge who assessed the applicant's ability to roll up his or her sleves and do what lawyers do. Bar Examiner activists have erected all these increasingly high barriers in the last 55 years or so to screen out Europeans, Communists, African Americans, women, and now the disabled.
The hour is getting late, it is long past time to tear down this wall of oppression, and bring freedom of diversity and opportunity to all members of this profession.
Posted by: Mary Katherine Day-Petrano | May 30, 2005 7:56:25 PM
P.S., only a few Bar Examinations ago, the pass rate on the California Bar Examination was only about 35%.
Posted by: Mary Katherine Day-Petrano | May 30, 2005 7:57:38 PM
"For me, the bar exam is like the driving test. It's not like anyone with a basic idea of how to drive can't pass the driving test, with ease. (Oh no! I've got to parallel park!). So for most of us, it's a minor nuisance that doesn't really show much.
But for the 10% or 20% for whom the driving test is an actual impediment -- well, let's just say that I'm very, very glad that they're _not_ licensed to drive."
This commentary by Kaimi is prejudicial and based on stereotypes and ignorance about the disabled. It is sad that some members of society adhere to such myths. And it is tiresome for disabled people to have to correct people who should know better.
The inability of people with certain types of disabilities to pass standardized written testing designed to serve as a rather poor proxy for performance skills sadly relegates such people to loss of every opportunity others take for granted -- especially as standardized tracking has taken ahold of America in the last 50 years or so as the measure of who is a valid human being. The Grand Experiment.
I have autism, learning, and cervical mobility disabilities. I was not able to pass the New York Regents RSQCT test (predecessor of the SAT) when I was in high school many years ago, my SAT scores were low, my LSAT, GMAT, and three California Bar Examinations were all low scores, because my rote memorization skills are impaired and autistics are very literal, meaning an autistic can perform the actual skills of an attorney researching, preparing pleadings, and preparing for an argument, yet cannot pass multiple choice trickery. If I had to take Florida's FCAT today to live up to No Child Left Behind, I would be left behind for sure -- far, far behind.
The only reason I passed the California Bar Examination on the fourth try was because the California Bar finally accommodated my disabilities after a 7-year struggle for necessary accommodations, and I wrote the best answer on the Performance Test on the sunken treasure ship, The Merida.
Even though I cannot pass standardized written multiple choice and Essay-format examinations, my hands-on performance skills are among the best. If I see others demonstrate something hands-on (no written explanation, no recipe book, no instructional sequence), I can pick up whatever it is 100% perfectly by one or two observances and just doing it. I have a near photographic long-term memory, the strategizing ability to beat IBM's computer predecessor of the Kasparov Big Blue at age 7, and even won a National Horse-of-the-Year Jumping Championship (horseback riding is communication and mobility therapy for an autistic). If I see a lawyer execute a particular litigation manuever (either by sight or through my hyperlexic reading abilities), I never forget how to do it perfectly from seeing it just once.
I actually hands-on performed the task of driving in multiple States for almost 37 years, across Country from coast-to-coast, and North to South pulling horse trailers as large as 6-horse with a dually, entrusted to transport valuable show horses by my clients. The last 10-years before my encounter with the State of Florida and its standardized written-proxy driver's licensing examination, I had a safe and clean driving record without even a parking ticket on it. What more measure can there be of someone's ability to drive safely?
Yet, apparently the Florida Department of Highway Safety and Motor Vehicles had a problem with my driving while autistic, and suspended my driver's license indefinitely because they refuse to comply with Title II of the Americans With Disabilities Act and provide a performance test based written driver's licensing examination accessible to my voice-recognition software (many autistics use through which to communicate).
I already discussed the California and Florida Bar Examinations posing a similar difficulty in another post -- all of these tests measure the impaired skills of people with certain types of disabilities, like autism and learning disabilities.
Maybe people like you can take these tests with no problem. Obviously for you, these "nuisance" tests are not measuring an impaired disabled skill. But why should a proxy-measure that is not narrowly tailored to measure the actual hands-on performance driving skill (like a road test or a computer simulation would), one that does not utilize the least restrictive means, prevent a person who actually can and has driven safely from the necessity of driving a vehicle?
Why should someone be penalized for a standardized written proxy task that is not essential to performance of the actual activity it purports to measure, just to make people who excel at these standardized proxy-tests happy to avoid changing a bad system?
It is a stereotype of the worst kind to say an autistic or learning disabled person is maybe too stupid to be a lawyer or drive a car, or you would not want them on the road or in a Court. I thought we got rid of that concept with the Supreme Court's condemnation in Olmstead v. L.C. ex rel. Zimring of the unjustified institutionalization of such disabled people, because they are regarded as too stupid to have such opportunities and nondisabled people would rather not interact with them.
My mother was a member of MENSA with an IQ of 133 and earned A+ both semesters of atomic physics, could build a nuke, and would have earned her Ph.D had she not been forced to take care of me in her last semester at the University of Michigan. My IQ is higher than my mothers' as I am an autistic savant, but I am still very disabled with splinter skills.
The flaw inherent in such stereotype and prejudice is the failure to measure the exact skills and abilities that are impaired vs. those that are hyperdeveloped (exceed the top 2%), and using the inability to pass certain types of over and underinclusive standardized proxy tests as a broad brush assumption the person's skills and abilities are impaired across the board -- including the essential skill which perhaps is not impaired. This is the type of false assumption Congress meant to eradicate by passing the ADA.
Maybe a lot of people don't like interacting (or even looking at) an autistic. Maybe there are lawyers and judges out there who think that a person with 20/20 vision who uses a voice-recognition software "can't see" because they wrongly confuse voice-recognition software with a blind man's screen reader. Maybe some fan the irrational fears of "the spector of giving out driver's licenses to incomptents," (ditto, law licenses), without stopping to think that we no longer live in the uninformed age of lobotomies or shooting electricity through floor strips to coerce autistics to read faster, but rather in the learned era of genetic and technological advancement.
My criminal law professor (Harvard law review) could not understand why I was not top of my class at a school like Harvard. I was hired by another Harvard LLM (and law professor at a Florida law school) for my legal abilities. On a horse blog, a Harvard law student (3L) could not understand what the big deal was about California and Florida Bar Examiners and Courts refusing to provide reasonable accommodations -- in her words, disabled law students at Harvard are as voiciferous as any anywhere.
In a recent admiralty salvage case co-Plaintiff'd with my husband (he can take standardized tests, so he already got his bar admission), I took down a Board Certified Admiralty Specialist's key witness through my knowledge of Coast Guard licensing, and we are winning the case. (And I was not raised on ships. I was just a girl who took admiralty law several seamen and captains saw fit to mentor).
Which goes to show the present Bar Examination system is a disaster. Why should someone be reexamined over and over to redundancy on Nationalized examinations (MBE, MPRE), just to keep demonstrating the ability to pay fees, be required to examine generalized subjects the person will never choose to practice (in my case, criminal law), yet be excluded from a specialty subject on one's subject of extreme interest and focus of study that the person happens to be very good at?
There is not much about the present bar admission system that can withstand logical scrutiny, and it become readily more apparent that the reason for maintaining the status quo is not legitimate --(1) restraint of trade, and (2) keep out the disabled.
Posted by: Mary Katherine Day-Petrano | May 31, 2005 1:35:52 AM
As a lawyer, it is important to have a barrier to keep new law school graduates out of the profession. Everyone I know who has consistently failed the bar exam are also people who should have nothing to do with the law.
Say what you will about the Bar exam, it is not the most difficult test in the world. Passing is not an impossibiliy; for instance, Yale Law graduates spend three years actively trying not to learn the law, and then can pass the test after a 6 week review class.
Posted by: John | Jun 1, 2005 7:55:53 PM
"For me, the bar exam is like the driving test. It's not like anyone with a basic idea of how to drive can't pass the driving test, with ease. (Oh no! I've got to parallel park!). So for most of us, it's a minor nuisance that doesn't really show much.
But for the 10% or 20% for whom the driving test is an actual impediment -- well, let's just say that I'm very, very glad that they're _not_ licensed to drive."
Talk about arrogance.
Gerry Spence failed the bar exam on his first try. (After graduating #1 in his class.) Care to make an argument that he's an ineffective advocate who ought not be practicing law?
Then again, if you ever had to try a case against him, you probably would be wishing that he didn't have that "license to drive".
Posted by: Kesher | Jun 1, 2005 7:57:05 PM
I have to ask an obvious question that arises from the discussion about the bar exam. Just what does earning a JD mean?
I believe that passing the MBE should be a requirement in order to graduate from an accredited law school. The "common law" subjects tested are usually taken within the first 4 semesters of law school and the test should be administered sometime before the start of the final two semesters.This way, those that fail would be able to retake the MBE and still be able to graduate on time.
No student should receive a JD without some level of competence which apparently is not the case today. Those who cling to the efficacy(myths) of giving the bar exam all state reasons that should be addressed before receiving a JD if the degree is to mean anything.If ABA accreditation means that one is eligible to take the bar exam in any state, why shouldn't it also mean that the schools are graduating people who have mastered the "common law"?
The time to filter out incompetents is before they receive a degree, not after! As hard as it is to get into any accredited law school(there are no open admissions policy at any accredited schools), and with the high prices charged to attend, there is simply no justification for allowing someone to graduate without the minimal competency to practice law.
The only remaining issue after graduation should be competence in a state specific law. This should require only a one day period and encompass mostly civil and criminal procedure, and evidence. The format should be multiple choice with the results available within a weeks time. If someone fails, they should be allowed to retake the test in a short period of time, not months later.
Undertaking this type of reform would not address some of the criticisms leveled aginst the present day exam.It could however expose and underscore deficencies in the present presumptions and structure of law school programs.
This is a good thing. If we are to believe the justifications for having a bar exam as it is presently constituted, receiving a JD doesn't mean anything other than the person(or the tax payers) has paid "x" amount of dollars over a period of years solely in order to be able to sit for an exam. How such an enterprise can be justified and not be a measure of minimal competency, well frankly, it "shocks the conscious"!
Lastly, I would like to add another criticism of the exam. The cost of taking it. I graduated a year ago and was not able to take the exam because I did not have the money for the f&c check, the application, and a prep course. As an independent student who had to endure two yeras of steep tuition and fee increases, I was barely able to keep a roof over my head during school.Not everyone has perfect credit, or has someone to co-sign for a bar loan. Working part-time during school ate into my study time, but I managed to graduate with an ok g.p.a., but not as high as it could have been if I did not have to work.
I have observed(from my school, and two other accredited schools in my city) that another strong predictor of bar exam success is the ability to cover costs throughout school. Those who didn't have to worry about money made better grades and passed the bar at much higher rates than those that did have to constantly worry about money. I believe this is another reason why the MBE should be administered during law school.
Posted by: sebastianguy99 | Jun 6, 2005 3:18:23 PM
"As a lawyer, it is important to have a barrier to keep new law school graduates out of the profession. Everyone I know who has consistently failed the bar exam are also people who should have nothing to do with the law." by John.
Allow me to translate this remark:
As a lawyer, John promotes barriers designed to restrain trade, that is restrain the numbers of people who become lawyers (supply side of the equation), increasing the income for those who are already-lawyers to ply the trade among a steady or increasing client base (demand side of the equation, as the population grows faster than the increase in new lawyers).
Everyone who fails the Bar Examination (a test that examines the skill of short-term memory based upon reading comprehension, not one of the essential functions of how lawyers actually practice law), "are also people who should not have anything to do with the law."
The implied part of the logical syllogism is John's estimation that I "consistently failed the bar exam" and therefore, I am among the "people who should not have anything to do with the law."
The remark is a fallacious argument, and one, moreover, of either callous indifference or bigotry toward the disabled, a constitutionally protected class.
First (a shameless but relevant brag), I should say, I am proud of having achieved a joint J.D./M.B.A. degree from an ABA-accredited law school, having accomplished this as a single parent, and of having passed the July 1997 California Bar Examination, and therefore, the fallacious generalization really is not accurate.
Second, lawyers prepare their pleadings with the research and forms in front of them, edit the product, sometimes many edits and reorganizations, then prepare a 'cheat sheet' (for lack of a better word) of the high points to raise at the oral motion hearing/trial/ or appellate argument.
Where in this process is short-term memory based upon reading comprehension of long passages, and the ability to control one's dyslexia with multiple choice numbers and letters (symbols), an essential function of the practice of law? I guess we are supposed to cram on what law we think might come up for 8-10 weeks, subsequently operate from memory without doing any further research for clients, shoot form the hip, and hope we remembered it right from our cramming sessions.
There is a good reason for the legal profession's inability to weed out "incompetents," as the terminolgy is ordinarily chosen to support the fallacious generalization. It is because a test of short-term memory based upon reading comprehension and not being dyslexic with symbols will never be capable of accurately measuring performance skills. The remark about how Yalies can be taught-to-the test in 6 weeks underscores the point. (I would like to see an SSRN statistical study on how many people with cognitive disabilities overcome the barriers to get into Yale).
There is also a very good reason I passed the California Bar Examination -- the Performance Test. Performance Tests eliminate the discriminatory screening-out criteria of penalizing people with short-term memory impairments and dyslexia with symbols, in favor of those who want to restrain the trade of lawyers so they can increase their income artificially. A predatory practice upon the disabled, effecting wealth transfer to the already-a-lawyer class through unfair and discriminatory trade practices.
Performance Tests do weed out the people who cannot actually perform the essential functions of a lawyer, by providing the research library, documents, memos, and other information, requiring the examinee to figure out what the call of the question is, what type of writing task is involved, what the issues are, what the relevant facts are, and how to apply the law to resolve the relevant issues. An accurate simulation of the practice of law.
The distinction between testing methodologies, of course, is built on the realism that the world is not one of black and white, of measures like "competence" or "incompetence," but of many different types of people, some of them with a variety of disabling conditions (as well as hyperdeveloped skills), who fall somewhere else on the continuum between black and white, and may be very capable of actually practicing law.
John's real gripe is why the already-lawyers cannot just erect illegal restraints on the trade of lawyers, and be able to get away with it at the expense of other worthy people who can perform the essential functions of a lawyer and want a share of the wealth-accumulation.
Posted by: Mary Katherine Day-Petrano | Jun 12, 2005 2:39:35 AM
Actually the best indication of how well one will do in law school, college or grade school is how much money their parents make.
Some people come from familial cultures and networks of people who have been attending professional schools for centuries. In many cases thousands of dollars have been spent tutoring these same kids for the SAT, LSAT, and every other standardized test they may have come across.
Posted by: rondo | Jun 13, 2005 1:04:27 PM
It seems to me, that there is one glaring defect in the teaching of law -- something that is present in the teaching of medicine -- empathy.
The average law student, comes out of high school, goes straight to college, earns a bachelor degree in something, then takes the LSAT, gets into a law school, does the three years, takes the bar, and then starts giving advice to clients with real world problems to solve.
Unfortunately, the lawyer is not trained to solve real-world problems -- like for example, how to get reasonable parenting time with one's child, after a divorce destroys all faith and trust between the parents.
Lawyers rarely have suffered through any of the legal problems that beset their clients (at least not until many years after they have been practicing law), so lawyers don't comprehend that some small business owner simply cannot raise the $10,000 fee to fight off the absurd lawsuit filed by a thief who is stopped by store security, only to find that on this one occasion, the thief hasn't stolen anything.
Doctors, on the other hand, have been sick, because everyone is ill at sometime during their lives, so it's quite easy to empathize with a sick patient.
Medical students spend at least a year interning and servicing all manner of the infirm, so that by the time their done, if they don't have empathy for their patients, they will never get it.
Law students, however, may intern in their third year of law school, but it's mostly about writing memos of law or motions to compel discovery, and not at all about solving or actually understanding the problems of a client who must choose between losing their home by paying out huge legal fees, or settling for something less than they might otherwise deserve were they able to afford a little more due process.
What's missing from the bar exam, and from lawyering in general then, is any test of life experience -- does the lawyer understand a client's needs? The young lawyer wants to fight to win a point of law -- not obtain efficient and rapid justice for their client, so that the client can move on with his/her life.
Ironically, the moral character examination required in most jurisdictions frequently serves to exclude from legal practice, the very people who have the necessary life experience and empathy that would make for a great attorney. After all, the older one is, the more likely something in one's past will cause a person to not be of sufficient moral character!
As for the bar exam itself, it is an exercise in malpractice. Any attorney who would use the technique of resorting to memory and the law of general application in a real-world litigation, would be subject to discipline for violation of the code of professional responsibility, and almost certainly liable to their client for negligence. But, on the bar exam, all that's ok, because...well, er, aaaah, because um, I know -- because the applicants aren't lawyers until after they pass the bar, so they can't be liable for malpractice yet! Yeah, that's it!
Thomas Jefferson did not take a bar exam, nor James Madison, nor Alexander Hamilton. And, Roscoe Pound, the founder of the American Bar Association wasn't an attorney, or even a law professor, although he taught law at Harvard. But, all of these people seemed to have had a pretty keen understanding of law. Is it possible, then, that we may have created a modern legal system that absolutely excludes the greatest possible legal minds from entering the profession?
The legal industry still produces some fine lawyers, but they are, in my humble opinion, the product mostly of dumb luck, rather than of any systematic process. If we trained physicians as poorly as we train attorneys, most patients would be maimed or dead.
In closing, I note that recently, Justice William Rehnquist has finally obtained a bit of empathy. He is obviously dying from cancer, and low and behold, he dissented in favor of the cancer patients who sought to exclude their very limited personal use of marijuana from the purview of the interstate commerce clause. Doubtless, five years ago, Rehnquist would have been on the other side of the decision -- finding such marijuana use an abomination -- although certainly cloaking his arrogant lack of empathy in some legal technicality.
The real bar to the practice of law, should not be some essay/multiple choice examination. Rather, it should be a restriction on legal practice to those who have first suffered through some serious legal dilemma(s) of their own. Only then, will lawyers have the wisdom to recognize that it is the outcome for the parties, and not the legal precedent, that determines the value of law.
Posted by: nontraditional | Jun 15, 2005 1:02:02 AM
I spent a year at a bottom-tier ABA law school, then voluntarily quit to stay in the professional sales/marketing world. I already got the nice luxury car and loud urban life anyway, so no change in living standard, JD or no JD. Legal education, socratic, shepardizing, etc was fun in a sick way, so I do understand the idea of axing the bar. BUT, from a strictly business "money-making" perspective, you have to find a way to keep prices up and competition under the scope as long as legally possible until you can't do it anymore. "Legally" is defined as any tinkering with anti-trust in re price-fixing, discriminatory actions involving consumers, etc. The retail industry is knee-deep in voluntary price stipulations as way to regulate pricing & maintain a profit that's worth getting out of bed...
The day will surely come when so many opinionated people are going to have some kind of legal education to the point of telling attorneys how to do their job, and how to bill them too. Like how so many people today now just go to Home Depot to fix their house in lieu of hiring a contractor, forcing remodelers to be more competitive in pricing and advertise "extreme makeover" price packages. Or making your own dumpy website for free instead of hiring a saavy web geek, forcing techies to get laid off and accept work at a cell phone store. Notice more Americans are infatuated with the "do-it-yourself" approach, and fast-growing interactive media encouraging that habit culturally, perhaps fanning the flames, if you will. I believe that will surely be the day when the bar is abolished... when the legal profession dims on an economic scale. Hope I didn't scare anyone, but no worries, the dimming will take DECADES... thanks to force fields like the omnipotent State Bar!
Posted by: dontplaymonopolywith3Ls | Jul 11, 2005 2:06:13 AM
The Bar Exam does not reflect actual intelligence no legal advocacy ability. I am taking the bar exam for the third time but unlike many people, I usually do exceptionally well on standardized tests. I took the ACT, SAT, GRE, and the LSAT and did well enough to get scholarships for college and get into very difficult programs. Texas is a very difficult Bar exam. However, I have done well on my essays, but my MBE scores continue to be very low although they are improving. Also, I have worked with several attorneys in small offices and have often written briefs that were so well written that these attorneys just signed them and submitted them to court. Needless to say, I have won several cases on summary judgement before even passing the bar. The Bar exam is archaic and mundane. It proves nothing except that it is a good method for states and bar reviews to make tons of money!!
Texas Bar Exam
Oil and Gas
and Tax as a crossover subject..
Thats difficult by anyone's standards..
Posted by: TexasLawGrad | Jul 11, 2005 2:53:44 PM
So, I did a google search to see if I could find my Illinois bar exam score (I passed July 05), only to come across this blog. It sounded interesting, so I started reading. Then, I came across Kaimi's post. People like you remind me why I have worked so hard to get where I am today. Born into a single parent family, getting straight A's in high school, only to go to the local college because we couldn't afford for me to go anywhere else, even with substantial scholarships offered and then paying for law school while working 2 jobs (bottom of Tier 1) and then meeting people like Kaimi, who think they are so self-righteous because Mom and Dad paid for everything, so that they could go to an Ivy League school (which by the way I was accepted to top schools, but could not afford to go). And then, on top of that, bragging about how the bar exam was a mere formality. That's bull. He's probably the worst secret studyer (what we called them at my school). Someone who claims they never study for anything, but mysteriously are always busy Friday and Saturday nights.
Ok, enough about Kaimi. The bar exam is not about what law you know, its about how hard you work to jump through all the hoops the bar examiners put you through. I have only come to this conclusion as I sit here right now studying for my 2nd exam (passed in one state and because of job, taking another). While studying for the first one, I was all caught up in learning every bit of law I could cram into my brain, only to realize my brain got pretty full and about 1 week before the exam I actually forgot my name.
And just because you go to a top school, does not mean everyone will pass. In my area, our school was not that far from a top 10 school's passage rate, neither in the 90% range, as Kaimi quoted.
Posted by: new_boston_resident | Jan 17, 2006 3:52:07 PM
At top schools, the bar _is_ mostly a formality. Yale passed 95% last time around; Harvard passed 96%. The numbers don't lie. And as a result of those numbers, none of my classmates worried much about the bar during law school. Perhaps this makes you feel bad or angry or whatever else, but that doesn't change the reality.
I suppose that you'll use this follow-up comment to make additional assumptions about my parents' income level . . .
Posted by: Kaimi | Jan 17, 2006 8:29:17 PM
Do you think the bar passage rate is so high at the tier 1 schools because the intelligence of tier 1 students is higher than tier 2-4 students? Maybe tier 1 students are just as intelligent as tier 2-4 students but have more of a willingness to excel. Is it perhaps that tier 1 schools employ better faculty members? A combination of these? I have a feeling it's simply a higher intelligence, since the LSAT scores are supposed to measure that, but I'd like to see your input on it. When you were in elementary school, did you ever have an IQ test given? If so, do you know the score?
Posted by: Joe | Jan 18, 2006 12:25:37 PM
Good question. I suspect that there are a lot of factors in play, but the biggest is that the top schools just take the most promising students. And it is particularly the case that top schools take the students most likely to pass the bar exam.
The ability to do well on the bar exam is a measurement of a lot of things: training, intelligence, writing ability, preparedness, and so on. A good deal of it can be summed up in the broad area of general test-taking ability. And the top schools draw directly from the students who have shown the best test-taking ability.
This is _not_ to say that this means that this student pool is the best for all possible purposes. I very much appreciate the limits on any ability to judge students based on LSAT scores. LSATs are far from a perfect measurement of intelligence, and they have definite limits in predicting success at things like eventual law practice ability.
However, when it comes to predicting future _test-taking_ ability, one's LSAT scores are a _great_ predictor. Why wouldn't they be? We're talking about taking a population that has done very well on one test (LSAT) and now giving them another test. Many of the attributes that allowed them to do well on the first test also help them on the second test. So it's not at all surprising that in schools that typically draw from the top of the LSAT pool, the class typically does very well on the bar.
You asked if the difference may come in part from better faculty. I don't believe this is true. In my experience, the top schools do not employ faculty who are more likely to prepare their students for the bar -- in fact, the opposite is true. At lower-ranked schools, the emphasis is on the faculty to help the students by preparing them more for the bar; meanwhile, at many top-ranked schools, the classes may only briefly touch on the black-letter law. (I had multiple such classes in law school). The assumption is that the students will take BarBri or whatever else, and then will pass. This mostly works, as evidenced by the pass rates. Therefore there is little or no pressure on the faculty to help the students pass the bar by (for instance) focusing on black-letter law during classes, and many of the faculty at top schools prepare their students much _less_ for the bar than faculty at less prestigious schools.
Posted by: Kaimi | Jan 22, 2006 12:22:10 AM
You're on the right track - I don't disagree with you. People who go to top schools largely pass, but its because they are educated far differently than those of us who have struggled through life with little or no money.
Now, this is speaking on general terms. I know there have to be exceptions, for instance, myself. But, on the whole, kids who go to even to the top 50 schools had someone (like Mom and Dad) pay for their education. They went to better schools in better neighborhoods growing up and the quality of their education was much higher - in turn producing much higher standardized test scores. They got into better undergrad schools, knew the value of good grades and then got into the best law schools. Now, I know someone had to help them pay for this. In undergrad, not taking into account my scholarships, there was an average of $5k availabe in federal money - per year. At the large public university in my area that barely covered tuition and books. There are loans available for parents, but if you come from a single parent home with a mother making very little money, you can kiss those parent loans goodbye. Then, in grad school, there is about $18,500 available in federal money. Again, that barely covered my tuition at the large public university law school. Which is why I had to work 2 jobs until my second and third years when I got substantial scholarships. Its all one big circle - and hey great for you. My kids will benefit too, because they will go to better schools and my husband and I will be able to afford to pay for college and grad school for them. But, don't deny this advantage that you have.
As for the bar exam, its about studying efficiently and knowing how to study. I agree with your professors comment - mine were all from Harvard, Yale, etc. Although, except for 1st year, they didn't cram down our throats black letter law, which I think is true in most schools. If you learn secured trans, you learn secured trans - there isn't much theory in that. It all depends on what you want to take - I studied business (securities, bankruptcy, biz planning), so again, there is not that much theory. I would be interested to find out if you mean 1st year classes or upper level classes. I can't imagine a theory based torts class.
And as I sit here on a very snowy Monday, I have to study for the bar. And, it takes effort, it takes studying, and it takes time. And it sucks!
Posted by: new_boston_resident | Jan 23, 2006 9:55:26 AM
New Boston Resident,
I remember my psych 101 class in college and the old debate between genetics and environment with respect to intelligence. You speak of low income families being unable to send their children to "good" schools. But, I do wonder just how much one's intelligence is enhanced by school, at least after one reaches a certain minimum standard of education.
Posted by: Eric | Jan 23, 2006 8:50:09 PM
Posted by: John Doe | Jan 29, 2006 11:34:07 AM
Although I can understand why taking the bar exam one time is important to weed out people who should not be lawyers - it is difficult to understand why lawyers should have to take it again just because they want to move. I went to law school in PA, took the bar there, passed the bar there and worked in PA for ten years. About two years ago my father had a heart attack and I wanted to come home to Florida to be closer to my parents - but I couldn't just pick up and leave b/c I would have to take the Florida bar exam. I recently decided to take the plunge and move to Florida - I just took the Florida bar - I have no idea if I passed or not and since it has been less than a week since I took the test, at this point I don't care. But it was very difficult to work full time and study for a test that tests subjects that don't have a lot to do with what we are doing every day - and for what purpose - I passed the Mulitstate in PA - why do I need to pass it again if only to make it difficult for lawyers to move - the test is so difficult in that it requires a lot of memorization. I found the topics that were harder right out of law school - like evidence, crim pro and crim law, to be very easy this time around, and topics like con law - which I have not thought about in 10 years - to be much more difficult than they were when I first took the exam.
Posted by: Dawn Cutaia-Watchilla | Feb 26, 2006 10:47:47 PM
I too just finished taking the Florida Bar exam. I too could not transfer my otherwise passing MBE score from over a decade ago because I was not physically in FL when I took that MBE. Nor is my otherwise passing MPRE score considered sufficiently timely, so I have to take that again, too.
Regrettably, FL takes an adversarial approach towards every lawyer moving from out of state, which it seems to justify via the overbroad assumption that we are all moving here voluntarily to take advantage of the weather & the Homestead laws. Its primary focus seems to be limiting the competition, because so many people move to Florida every year, including many attorneys from other states who retire here. However, some attorneys - like the above poster - move here for family concerns, while others, like me, come here because of our spouse's military orders. We have no choice in the matter, but FL draws no distinctions for lawyers in my position, though it DOES make exceptions for other licensed professionals, such as nurses.
I am NOT buying the NCBE line that the current MBE is equivalent to the MBE I took & passed over a decade ago. Back in the day, everybody took BARBRI for seven weeks. Some people took PMBR, but I and most of my friends did not. In restrospect, our learning process was very passive, just as it was in most of our law school courses - attend a lecture, take notes, study from the notes. I remember practicing on SOME multiple choice questions, but not an enormous amount. Today it seems that people have to seek out a very competitive MBE prep course that attempts to simulate the current state of the MBE, and then do THOUSANDS of practice questions, just to have any hope of passing. I studied longer and harder for this FL exam than I did for the two exams I took simultaneously over a decade ago. I did 1100 practice MBE questions & hundreds of practice FL MCQs. Yet, while I felt reasonably prepared for the essays, I did NOT feel confident or adequately prepared for the multiple choice questions I saw on the 2/2006 exam. I have no expectation of passing, and I realize that to do so I will have to pay Pass Your Bar (Reed's) or Micromash & drill myself until I can't see straight. All so that I can practice with a bunch of people who probably could not pass today's version of the FL bar exam. (2 years ago, FL raised its "cut score" by 5 points.)
FL pass rates are plummeting (from ~90% in 1994 to just over 60% today), yet the bar "experts" refuse to point to a harder MBE or the higher cut score as the reason. Rather, they blame the students for being "less prepared" or for coming from some of the newer FL law schools, which, they suggest, take students who have no business being lawyers. Those schools have responded by spending 3 years drilling their students on the FL exam. All of which makes it harder for those of us who have NOT spent years doing that. This current "gamesmanship" mentality does a disservice to the profession by making students less inclined to take interesting, useful practice courses that have nothing to do with the exam, and by punishing those of us who actually have legal experience and have contributed to the economy by WORKING during the past few years rather than spending that time focusing on this exam.
Four years ago, the ABA recommended that states grant reciprocity to practicing attorneys. FL has been one of the most stubborn in refusing to do so. Its neighbor, GA, which used to have similarly restricitve rules, went along with the ABA. Even CA offers a shorter attorneys' exam. But FL will not bend. Instead, as noted above, it thumbed its nose at the ABA by raising its cut score, despite some evidence that doing so has a disparate impact on minorities attempting to pass the bar.
I think a strong argument can be made that FL and states behaving similarly are perpetuating unconstitutional rules that restrain trade, limit interstate commerce and fail to give full faith and credit to other states' licenses. Yet, if no one challenges the Bar, and FL's "sunshine law" concept is not extended to this arena, then nothing is likely to change in the foreseeable future.
Posted by: Burnt Orange | Mar 3, 2006 12:33:55 PM
If the Bar exam is the determining factor behind your qualifications as an attorney, your initiation into the club if you will, then why do we need law schools? The apprenticeship system worked, with the Bar Exam as a measure of how well you learned your trade from your master. Can one still do this? Or is the Bar limited to those who have attended Bar approved schools?
Posted by: Eric | Apr 12, 2006 3:16:37 PM
I have read many commentaries on the bar pass rate of different states. I found several which implied that the massachusetts bar was not as difficult as the california bar. Massachusetts was frequently referred to as "passachusetts". Any truth to this?
Posted by: Diamond | Apr 15, 2006 9:27:20 PM
Diamond - CA is the hardest bar in the country. ANY other state's exam is easier by comparison, though FL & NY are not far behind, along with some other, less populous states that require high scores to pass (Check pass rates).
CA's bar is 3 days long (PT, MBE, essays). CA does not release your scores, so it's impossible to know how they graded you. (In contrast, PA gives you an incredible amount of detail about your performance). The multistate portion, which is at least objectively graded, counts for less of the overall score in CA than in many other states, like MA, where it is 50%. The rumor is that the CA essays & PTs are downgraded (i.e., it is very rare to get above a 75 or 80 on a scale of 100 on each essay) so that you are starting out in the hole as you try to reach the passing level. However, two other factors in CA's low pass rate are that they let people re-take forever (re-takers pass at a lower rate than first-timers) & that they let people from non-ABA accredited law schools take the exam, which most states do not.
MA counts the MBE 50% & 10 essays 50%, but the scores are added together & divided by 2 so that a good performance on one part can offset a lesser score on the other. The fairly high first time pass rate (~80%) suggests that the essays are graded fairly. I took MA years ago & the only people I knew of who failed were those who didn't study for it much - for one it was their second bar; another was planning a wedding, etc.
I do think that the MA gets this rap b/c it is one of the few "Thursday bars." Most states give their state portion on Tuesday with the MBE following on Weds. MA is on Thurs., so it is set up as a second bar, as is CT. Many people taking MA are also taking NY & to them MA seems much easier by comparison. These NY takers are the ones I've heard use the term "Passachusetts." However, as noted above, if you blow MA off, you can fail.
Finally, some states' bar examiners are trying to keep the number of new lawyers down because many people want to move to those states. CA, FL & TX come to mind. You have to jump through a lot of hoops to get admitted -high fees; long Character & Fitness Applications; onerous reviews of your background; hard bar exams; mind games, etc. When I applied to MA, the main question they asked was whether you'd been convicted of a felony in the past 7 years. If not, sign here.
Posted by: Go East or NW, Young Man | Apr 16, 2006 9:31:53 AM
Go East or NW, Young Man
Thank you for the informative response.
Posted by: Diamond | Apr 18, 2006 5:11:58 AM
The bar exam definately needs to be abolished. To me it is nothing more than a complete insult to spend 3 years of my life and over $100,000 earning a degree that qualifies me to do absolutely nothing other than take an exam that even most lawyers admit has absolutely nothing to do with a person's competency to practice law.
The exam as it exists today is a test of mind games. The questioned are specifically designed to be overly tricky and lead people astray. They notoriously test on areas of law that few are ever likely to encounter in actual practice. Other parts test on areas that could easily be looked up in a book that would be located in any lawyer's office.
If they must continue this load of nonsense that is the bar exam, it should be seriously amended to actually test minimum competency. The test should consist of a one day, six hour examination. The first three hours would consist of two 90 minute questions in the style of the current Multistate performance exam. The second would consist of a three hour, 100 question, multiple choice test that covers a few very basic things. I would say this would be as follows:
1. Criminal Procedure (20 questions)
2. Jurisdictional/Con Law issues (standing, etc) (20 questions)
3. Presentation of Evidence (20 questions)
4. Basic UCC (20 questions)
5. Special State-Specific Tort Issues (15 questions)
6. Requirements for making and probating wills (5 questions)
This more than adequately tests what a minimumally competent lawyer should know "off hand" without consulting a book. They should know how to prepare a letter to a client, a memo to a supervisor, a simple motion, and either an opening or closing argument to a judge or jury (depending on who is the trier of fact of a case). They should know how to present evidence to the court, when a court has jurisdiction, when to spot easy situations where police/government has overstepped its bounds. They should know basic rules about holders in due course, bona fide purchasers, negotiability, repossession, forgery, and warranties under the UCC (as these are the areas they are most likely to encounter). Many states have special tort claims (e.g. unfair and deceptive trade practices) and lawyers should know about these and how to plead them. Finally, a lawyer should know the requirements to make and probate a will in case he should be required to do something like this in an emergency.
A short, one day exam such as this would be able to show on its face whether a lawyer is competent. There is no value in showing a lawyers ability to memorize arcane rules when the bar exam is supposed to be a minimum competency exam. Why test on something that an otherwise competent lawyer could look up in five minutes? It's ridiculous.
As someone else said, I think the bar exams have become little more than protection rackets for some states. I would really like to see the bar exam, in its current form, be subjected to some sort of legal challenge. Perhaps states do have an interest in making sure a lawyer is minimally competent, but the way they are doing it does not meet this goal whatsoever and there are ways in which this goal could be reached that would not impede a lawyer's ability to 1) be admitted to practice in the first place; 2) travel to other states; 3) engage in multi-jurisdictional practice.
As a final thought, the very least some of these states could do is allow people to start taking the exam after their first year of law school. Most states force you to take it only after obtaining a degree, and the way I see it, the only reason for this is to exclude people who are financially incapable of taking the exam more than once. If a person were allowed to begin taking the bar exam after their first year, they would conceivably have four attempts at passing before they graduate. This allows them to start looking for jobs to pay back what is usually an outrageous amount of student loan debt. The way it works now, most students have one chance to pass. If they don't pass their first time, they need to find a job outside of the legal profession because they do not have the resources to devote to retesting - bills and loan debts must be paid - and these people end up being permanently excluded from the practice of law.
As a final thought I will say that the bar exam in its current form is very much a "gut check." It makes the applicant wonder if practicing law is really worth it. I am studying for the Texas Bar Exam right now and have already determined that, if I could go back and do it again, I would never have gone to law school. For me, practicing law is just no longer worth it and I would rather be looking for some other job that pays than studying for (and probably failing) this goddamn exam.
Posted by: Jason Van Dyke | Jun 27, 2006 1:37:54 AM
I'm currently studying for the bar exam and I think my biggest problem with it, is that I only want to practice criminal law and only took courses that would help me with that during law school. I wanted to learn criminal law and I didn't care about commercial paper or corporations. As such, I never took those courses. I just couldn't justify spending $100,000 to spend three years preparing for a test, as opposed to spending three years preparing to do what I want to do.
And therein lies the problem with the bar. I'm not entirely sure I'll pass the bar exam. But I know my criminal law, criminal procedure, evidence, etc. in and out. Through internships, research projects, etc., I've already had my unedited motions and briefs submitted in multiple state courts and federal courts. I've written chunks of petitions for cert to SCOTUS. I'm competent.
But I'm probably going to fail the bar. So I don't agree that people who fail it are obviously unfit to pass.
Also, only giving it twice a year is problematic. Not only do I not have the civil background, I also couldn't afford a bar review course and am studying on my own (I held unpaid positions all throughout law school), I have to fly across the country for 2 days to interview, and on top of all that, have to have a necessary surgery before the bar exam as my health insurance expires at the end of July. And let me tell you, as extreme as all of that sounds, I know of at least two other classmates having to undergo surgery right before the exam, one having to begin radiation, and one who acts as his dying father's caretaker. I doubt any of us will pass. But we're in $$$ trouble if we don't.
This whole thing is enough to make me wish I had never gone to law school.
Posted by: Anon E. Mouse | Jul 2, 2006 5:04:56 PM
Can someone challenge the bar exams under the Commerce Clause? Surely since I passed Virginia and can't move to Florida until I pass...it is somehow affecting commerce.
Posted by: Meggan | Jul 5, 2006 7:41:26 PM
The choke point of the bar exam rests with the legislature - ultimately, they allow it and they can forbid it. In order to make them forbid it, they have to see it's a hot button issue. In order for that to happen, there has to be public exposure. I urge you all to write to your legislatures and even your Supreme Courts and send them the links to these blogs that reflect the most rational of opinions about this horrible exam.
It's absolutely terrifying that a lawyer I know said the bar exam was good and should stay because he had to take it . . . wow, it really has become a hazing ritual. A learned profession indeed!
Posted by: The Voice of Reason | Jul 8, 2006 9:45:36 AM
Bar exams are crap.
It's pretty much deciding whether or not you just wasted the last 3 years of your life. It test stuff that will NEVER be used. Useless.
Posted by: Fk the bar | Jul 26, 2006 6:44:10 PM
Bar Exams, just another way for the establishment, boards of bar examiners, and the publishing/test prep companies to keep making more money off us, and to continue marginalizing those of us who aren't born into families with money to spend. This scenario manifests itself through one's educational life, and benefits those who have the money. Princeton Review Caplan/SAT/College, Princeton Review, Caplan LSAT/law school, BARBRI, PMBR/bar exam.
If my folks could have afforded SAT and LSAT test prep classes for me, I am sure things would have been smoother.
I am going to be taking BARBRI etc., but please you can't tell me that the bar determines one's qualifications as an actual practitioner.
Posted by: dpunk80 | Sep 29, 2006 2:37:48 PM
Wow, I really enjoyed all of the commentary. I agree with all of your comments and believe everyone has made a valid point. All of your comments were based on your own life experiences and I do not think you should have to defend yourself.
I simply could not and still cannot afford all of the fees associated with the Bar (definitely can't afford the retakes). I believe the wisest decision I made during my third year of law school was to apply for law-related areas of work (license not required). I did not want to assume positions conditioned upon my ability to pass the bar (who needs that added stress). That decision has really paid off for me. Many of my classmates passed the Virginia bar, but they were unable to secure employment. The classmates that were able to find work received very low wages in comparison to the amount of student loan debt they incurred.
I work for the Federal government in the EEO field (dispute resolution and drafting final agency decisions). The benefit of working for the Federal government as an aspiring Attorney is two-fold. My job was not dependent on the bar (law-related field). When or if I decide to enter the Attorney series-the requirement is that I simply be licensed anywhere in the U.S. (that means I can move about without sitting for and paying exorbiant fees for bar membership).
After conducting some research on the bar, I've decided to sit for the Washington bar. For me it makes good fiscal sense. I am a single mom (twins) and I have a need to obtain closure on this whole JD versus Attorney label. The Washington bar only requires you to retake the version you fail and the biggest bonus no MBE (I prefer essays).
I am a no nonsense type of person and the one thing law school did teach me is that there is more than one way to skin a cat (Who Moved My Cheese?). I hope you all find your way and put your education to use doing something you are passionate about or at the very least can make a decent living for you and your families.
I enjoyed the challenge of law school, but the realities of life hit me and I decided it was more beneficial for me to go to work and worry about the bar when I could afford the luxury of doing so. I am in a better physical/mental state. Let the games begin. See you in February 2007.
Posted by: Drea | Oct 15, 2006 11:49:35 AM
This is a very interesting topic, especially to someone as myself who is a lawyer and Adjunct Professor. I specialize in doing Michigan Bar Exam Appeals. Yet, I teach a class entitled Michigan Bar Exam Topics and Strategies (which focuses on the substantive law tested as well as how to be good at the testing aspect, both MBE and essay.) I would say that, depending on the state, the essay portion does seem to actually test current, up-to-date substantive law (at least on Michigan Bar Exam essay portion). The only slight problem is the relative "subjectiveness" in the grading of essays. Now, as for the MBE, I must agree that these questions have spun out of control. The National Board of Law Examiners who tout this exam and write its questions say that it is useful and indicative of good lawyering skills. Well.... if that were the case, why are so many questions "cut" after the fact due to the confusion they cause. They do seem to be nothing more than trick questions about very very very obscure minutia law. Tricking people on things like the differences between federal and state tax payer standing criteria. If any attorney is going to deal with such a case, that person will either already know from their years of experience what the criteria must be or... the newby attorney will look it up or, as the ethics rule call for, seek the assitance of the attorney who does know. So, the MBE questions, to me, are nothing more than mental masterbation exercises that really don't test a candidate's ability to practice law. I would like to see some sort of manditory "residency" similar to young, new Doctors, where they get more real life/real time experiences. If anyone is interested in Michigan Bar Exam information, let me know.
Posted by: Joseph Slaven | Oct 29, 2006 3:45:53 AM
I am an attorney in California. I passed the Bar Exam with no college degree or JD on the California State Bar Law Office Study Program. I think the Bar is necessary to have a basic standard to determine if someone should have the privilege to practice law in California. Passing teh bar exam with no law degree or college proves that it is do-able. I am alaways available to explain how I became an attorney on the California State Bar Law Office Study Program. http://www.ehlinelaw.com
Posted by: Mike Ehline | Nov 9, 2006 12:07:12 PM
Some states do that already.
I have to agree 100 percent. I was talking to my husband (also a lawyer) about that yesterday. LS is torture in itself...originally when they decided how LS should be taught, it was supposed to be like med school -with a sort of residency if you will-
But somewhere along the line they decided to scratch that idea. It's easy to be a med student because people love doctors, but they can’t stand us!!. They try to discourage us lawyers.
If not abolish the bar then supply residencies for graduates as part of the program. I was fortunate enough to have passed the bar and have my internship lead to FT employment but most aren’t. I know many smart people that can not find work…and yes my school is in the top tier.
Posted by: Shi | Nov 21, 2006 6:30:53 PM
man all yall got 2 stop hatin & get on ya job! take off da FCAT, &leave us alone!
Posted by: caroline @k@ titi | Jan 29, 2007 7:47:12 PM
The bar exam has become a simply painful experiences for me again and again. I went to a prestigious undergraduate in Boston and an excellent graduate school in NC with all the Cameron crazies. I've even have IQ tests that show my intelligence to be in the very superior range yet I have failed the bar. Why? I suppose it is because I've simply been profoundly anxious when taking the exam. This whole failure thing is quite new for me and very embarrassing!!! I will take it again until I pass which I pray to the God above I hope is soon! I know ancient Hebrew literature and philosophy better than anyone on this blog. I went to a lower tier law school only because my parents were no longer helping me pay for law school and it's all I could afford.
I will pass and when I do I sincerely hope to do battle in court with one of you who thinks that those who fail the bar exam are lazy or stupid. After we compare our IQ scores I'll destroy you in the court room!!
Posted by: LE | Feb 5, 2007 4:00:45 PM
The February Michigan Bar Exam is going to create a lot of appeals. This time around, the Law Examiners tried to "toughen up" on test takers by making the essay portion harder as well as adding in some questions about topics that are rarely seen in practice. Appealing the Michigan Bar Exam is possible but only with experience and expertise in bar appeal matters. For a list of the Michigan Bar Exam topics check out www.michbarexamappeals.com for information regarding Michigan Bar Exam Appeals and Bar Exam Tutoring. I just spoke with one of my tutoring students who passed the Feb 07 Michigan Bar Exam. He was a little low in the MBE section, but ROCKED a 113 score on the essays. He had previously failed the exam. This proves that if the right studying and learning anyone with a J.D. can pass the Michigan Bar Exam, it just takes some work.
Posted by: Joseph Slaven | May 6, 2007 1:57:45 AM
LE wow, you seem really bitter. I feel sorry for you. I mean c'mon, who says this: "After we ccompare our IQ scores I'll destroy you in the court room!!?" If you have such a high IQ (which I'm really doubting after reading your entry) do you see the glaring irony in your comments? Your getting mad at other people's speculation that the bar weeds out the incompetents. You're mad at that because you think its a knock on your intellectual capability, and then you go and knock other's intellectual capabilities by presuming that your IQ is higher than theirs.
Oh and by the way, educate yourself on IQ scores: read "The Mismeasurement of Man" by S. Gould. That should humble you a little by giving you bona fid proof that IQ scores have always been a sham of a way of measuring "intelligence."
Posted by: Marla | May 12, 2007 3:54:25 AM
How would you guys liked to have passed the bar exam, and have a state put you through the most grueling character and fitness examination ever heard of. Well, such is my case.
I have fought Florida for nearly three years now to get admitted in that state. Here's the kicker---no crime, no mental problems, no drug or alcohol abuse----just an other than honorable discharge that was created due to a clerical error in the Navy. Florida pulled me through a 1 year application where I had to attend an investigative hearing, a formal hearing, & petition the Supreme Court.
All the while I lost 2 jobs due to their harassment. I lost my home in New Orleans due to Katrina, and finally my fiancee took off never to be seen again. My appeal is currently lodged in the Supreme Court of Florida, but I don't like my chances. I wrote my own appellate brief after having squanderd 10 grand on an attorney for the formal hearing.....figured I'd just do it myself.....Still waiting.
The point is this--- you do everyhing they ask-----pass law school, pass the MPRE, pass the bar, and then they slam the door in your face. I have 100 G in loans and have no ability to pay them back. I have had to move all across the country like a vagabond due to the extreme finacial and emotional burden the state of Florida has exerted on me. I have no money left, and more importantly I have no dignity left. If I can offer a bit of advice----If you have any other choice----leave Florida's bar alone. They cost me my life.
Posted by: Aaron | May 15, 2007 5:11:45 PM
Aaron - that's another kettle of fish, the character & fitness part. Sometimes it seems more like they want to build a needless and nosy dossier on you rather than find out whether or not you're fit to be an attorney.
Nevertheless, with all the criticism of the bar exam, particularly the MBE, I still think it should not be abolished. This is coming from someone who didn't score too well on his LSAT, went to a third tier school and finished in the bottom half of his class. I take my first bar this coming July and based on the statistics, I have a mediocre to fair chance of passing. Yes, I'm a white guy, so maybe that helps - I'll take whatever small advantage I can get.
If I don't make it, you might hear me complain about the unneccessary trickery used solely to make MBE questions more difficult, and I might say a thing or two about the law schools washing their hands of troubled students after gratefully taking 100k plus in tuition dollars from them, but you won't hear me say the bar exam isn't neccessary. Without some kind of control as to who enters the profession, the already high number of unaccredited diploma-mills would be churning out grads with sketchy training. As it is, it's possible to go to law school and never set foot in a mock trial, never take evidence and never write anything after your 1L year. Anyone who does that can still, if they so desire, hang a shingle and call themselves a criminal defense lawyer. True, the bar doesn't stop this, but it does at least ensure that a newly minted attorney knows the basics and can think on their feet.
I hate to say it, but if after a couple of tries I can't make it, maybe I just shouldn't be a lawyer. I have no "right" to a profession, but I may have a "negligent admission" cause of action against the school. (Yeah right)
Wish me luck.
Posted by: Joe | Jun 17, 2007 5:06:50 PM
Having specialized in Michigan Bar Exam Appeals and Tutoring for the past ten years, I created www.michbarexamappeals.com. You can find links to everything about the Michigan Bar Exam. I have passed 62 out of 65 appeals. I agree though with those who have a problem with Character and Fitness. Is it not American Jurisprudence that says "Innocent until proven guilty." The biggest problem many face is past credit problems. That is an absurd litmus test of whether you will be a "good/ethical" attorney. Many people are not born with silver spoons in their mouths. Human, everyday life, sacrifices must be made by most persons. Tuition costs alone make life, financially, hard on most people, even with student loans. Who hasn't been flat broke at some point in their life after High School, during undergrad. Sure, if you embezzled funds from your employer, then yeah, maybe that is a real red flag. But a delinquent phone bill?? The whole process does seem like they just build a dossier on you.
Posted by: Prof. Slaven | Nov 14, 2007 12:01:47 PM
"What's crucial is that -- assuming they don't quit in frustration -- they do eventually pass." --Ryder
This statement, courtesy of Ryder, is the most important piece of advice on the board. On the bar exam, confidence and willpower are just as important as legal knowledge. One of the reasons why people fail the bar exam is because they're already worried about life after law school. If you don't attend a top school and are at the bottom of the class, chances are your job prospects are limited whether you pass the bar exam or not. That uncertainty, coupled with the mountains of debt most students incur to obtain a legal education, can crush the student's confidence. Therefore, for a lot of these students, the bar exam is as much psychological as it is mental.
My theory can also explain why repeater rates are so low. With just two administrations per year, students who fail the bar exam on their first attempt often have to look for a job just to get started on student loan payments, lessening the time necessary to improve on their performance. They will then have to confront even bleaker job prospects following their first failed attempt. The cycle of doubt continues.
There are, of course, exceptions. Students from wealthy backgrounds can afford to do nothing for 6 months and refine their approach to the exam, thereby passing the second time. Students with a spouse who makes good money can also afford to do nothing or very little in between the first and second bar exam. But these are exceptions. There is an element of unfairness in all of this, namely the real possibility that the barriers for eventual bar passage after a first time failure are bleaker for students from less than wealthy backgrounds.
As for the psychological effect of bad grades for students at non-top 25 schools, I think a lot of the blame must be placed on the schools. Many law schools do nothing to help under-performing students. Quite the opposite, they bask disproportionate attention on top students because they want to place them in elite firms to raise the school's profile. Even at my law school, which was far gentler than most law schools, bottom feeder students never received the type of attention required to ensure they did well on the bar exam. I could sense their loss of confidence. They were emotional wrecks who were simply in no position to do well on anything, much less the bar exam. I really felt sorry for them. Yet, I do not remember my law school providing any personalized sessions to these students that would allow them to prepare far in advance for the bar exam. Truth be told, a lot of these students could benefit if a Dean of Students simply told them to keep their head up high and maintain their confidence. But based on the people I've talked to, this rarely happens.
If the bar exam does indeed test skills needed for legal practice, a claim I admit I do not know enough about to comment on since I'm new to the profession, then the field should be level. Making the situation even worse for less than wealthy students is in my opinion an injustice. Therefore, the bar examiners in each state should administer the exam AT LEAST FOUR TIMES A YEAR to avoid long periods of uncertainty. Furthermore, schools must realize the psychological effect of poor grades and help law-performing students pass the bar exam through extended study. In other words, start preparing these students for the bar early and force them to take bar courses. I feel strongly that schools have an obligation to see these students through. The exception would be very 4th tier schools who admit students with questionable credentials in the first place. However, I am certain that students from second tier schools with decent LSAT/GPA credentials should all pass the bar exam. Almost all of them are skilled enough, so the question becomes how you maintain their confidence as they work their way through law school. For reasons not related to their legal ability, I feel that too many students are being hung out to dry. Perhaps these reforms will at least improve the current system, which does not seem to be ending any time soon.
Posted by: Chuck | Mar 8, 2008 2:57:58 PM
Perhaps what we need is a Federal Bar Exam that would gurantee admission into all 50 States and territories, to be administered during the second semester of law school so that law school graduates can actually enjoy their last summer before practice (I've been out of law school more than 15 years so I just feel sorry for new the new lawyers that we maintain this antiquated system)
Posted by: Amathew | Feb 20, 2009 2:51:22 PM
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