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Friday, May 27, 2005

Further Thoughts on Abolishing the Bar Exam

I received many thoughtful comments on my earlier post about abolishing the Bar Exam.  Most of the arguments for retaining the Bar Exam involve the need for erecting a barrier to attorneys being licensed. 

Hardly any of the Bar Exam supporters contend that the Bar Exam is a good metric for merit as an attorney.  If we want to block people from becoming lawyers, there are many ways to do it, but why use a test that doesn't do a very good job of it?  If we want a barrier, why not make applicants go through an obstacle course?  Or have a silly competition in something?  The Bar Exam is a hurdle that mainly functions as a hurdle, not as a meaningful way to distinguish competence from incompetence.  Passing the Bar Exam reflects at best: (1) whether you have enough money to pay for BarBri; (2) whether you have a decent memory to remember the rules; (3) whether you are willing to waste many hours studying.  The Bar Exam doesn't test legal thinking; the rules it tests on are not useful to the practice of law or much of anything else. 

Over at Conglomerate Blog, Christine Hurt notes that Wisconsin allows students from Marquette or U. Wisconsin to be admitted to the Bar without taking the exam.  However, she writes in favor of a Bar Exam requirement:

I wish that Wisconsin had a bar exam requirement, although that wish may be because other states do.  As Dan Solove pointed out, bar exams inhibit the movement of lawyers in and out of states.  Being almost the only state that does not require a bar exam has the reverse effect of inefficiently retaining and attracting lawyers to Wisconsin.  I think that the absence of a bar exam heavily weights in favor of our graduates staying in Wisconsin rather than venturing out and seeing the country.  Of course, Wisconsin has a lot to offer a lawyer, but so do other places.

The absence of a bar exam also shifts the role of "barrier to entry" back to the law school, which is not an easy role for law schools to play these days in the competitive law school market.  If either Marquette or Wisconsin took up the role of keeping 10% of all prospective attorneys out of the market, then we would find ourselves losing applicants.

This argument, like many others, is to praise the Bar Exam simply because it is a barrier.  I strongly disagree with Christine about the Bar Exam serving as a better barrier than law schools.   Some students spend three years of their lives and go into massive debt only to be stopped from practicing law by failing to pass the Bar Exam.  This is not where the barrier should be, at the end of such a long and expensive commitment for students. 

In a thoughtful post, Paul Horwitz writes: "[E]ven if for non-invidious reasons, entry barriers will -- and likely should, if they are aimed at quality control rather than maintenance of guild privileges -- remain.  The bar exam does some things well, and can be a reasonable quality control." 

I query whether the Bar Exam does anything well.  It is not a test of legal reasoning or skill; it is simply a test of whether one has remembered the rules. 

In the end, the fact that the Bar Exam serves as  a barrier does not strike me as a valid reason to exclude people from the practice of law unless it functions as a meaningful barrier.  It doesn't.  To the extent it correlates to effort in studying or memory or standardized testing skills, I'm not sure that these are the best skills that we should be looking for in members of the profession.  And also consider that there is not a large social benefit to all the hours that people expend studying for the Bar Exam.  All the hours spent on the Bar Exam could be used for a more productive purpose, such as helping people in need. 

Posted by Daniel Solove on May 27, 2005 at 05:37 AM in Daniel Solove, Life of Law Schools | Permalink

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» More on the Bar Exam and Barriers to Entry from Conglomerate
Dan Solove at PrawfsBlawg has more to say on bar exams and argues that they are poor barriers to entry. [Read More]

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» Next Symposium: Bar Review, Bar Exam from De Novo
With three of the original De Novo bloggers graduated and now studying for and taking the bar exam in various states, we'll be holding our next symposium on a topic much on their minds. It is planned for the first... [Read More]

Tracked on Jul 3, 2005 3:54:56 AM

» Next Symposium: Bar Review, Bar Exam from De Novo
With three of the original De Novo bloggers graduated and now studying for and taking the bar exam in various states, we'll be holding our next symposium on a topic much on their minds. It is planned for the first... [Read More]

Tracked on Jul 4, 2005 6:12:54 PM

» Next Symposium: Bar Review, Bar Exam from De Novo
With three of the original De Novo bloggers graduated and now studying for and taking the bar exam in various states, we'll be holding our next symposium on a topic much on their minds. It is planned for the first... [Read More]

Tracked on Jul 4, 2005 6:20:17 PM

» Next Symposium: Bar Review, Bar Exam from De Novo
With three of the original De Novo bloggers graduated and now studying for and taking the bar exam in various states, we'll be holding our next symposium on a topic much on their minds. It is planned for the first... [Read More]

Tracked on Jul 5, 2005 3:26:49 PM

» Next Symposium: Bar Review, Bar Exam from De Novo
NOW HOLDING THE PRESS FOR PEOPLE TOO EXHAUSTED TO SUBMIT THIS WEEK! SOBER UP AND SEND YOUR CONTRIBUTIONS TO RUN AUGUST 8-12. With three of the original De Novo bloggers graduated and now studying for and taking the bar exam... [Read More]

Tracked on Jul 28, 2005 10:37:53 PM

» Next Symposium: Bar Review, Bar Exam from De Novo
NOW HOLDING THE PRESS FOR PEOPLE TOO EXHAUSTED TO SUBMIT THIS WEEK! SOBER UP AND SEND YOUR CONTRIBUTIONS TO RUN AUGUST 8-12. With three of the original De Novo bloggers graduated and now studying for and taking the bar exam... [Read More]

Tracked on Aug 7, 2005 6:47:43 PM

Comments

This is a fun argument.

I think you are right to worry about the fact that many law students go into debt to pay for law school and then aren't able to pass the bar. However, I think that laying the blame for this situation on the bar exam itself is misguided: really, tier 4 and unaccredited law schools should be faulted for their aggressive marketing tactics. I don't think that it's ethical for tier 4 and unaccredited schools to heavily tout their product without putting a good deal of emphasis on the fact that half of their grads don't pass the bar. Many of these schools also have really stringent rules that kick out a good number of students before they graduate. Cooley, for example, has a policy that you automatically get booted out if you miss more than 1 class (no matter what the reason). In short, I just don't think that it's ethical for a school such as Cooley to graduate law school students since many of them don't make it to graduation, those that do are not very likely to pass the bar, and even then those graduates probably don't make enough money to pay back their loans.

Also, I did argue in a post that the bar exam served as a crude but somewhat effective tool for sorting out the semi-qualified attorneys from the not-qualified. I would like to add one more argument to that idea: if students have to study hard for the bar to pass, then the bar weeds out students that don't devote a substantial amount of time to it. While you bemoan this fact as another useless barrier to entry, shouldn't it be recognized that someone who doesn't have the commitment to law required to study for the bar exam might not be the best lawyer?

As I argued before, if the bar exam isn't perfect in its ability to test the skills that people will use as a lawyer, wouldn't it be preferable to work to change the exam rather than abolish it altogether? And I hate to say this, but if this issue really bothers you that much, you ARE a law professor. I'm sure you could pull some strings and get on the board (or whatever the equivalent body is) of the bar exam in your state and push for change.

Posted by: Jeff V. | May 27, 2005 8:16:48 AM

Perhaps the states and the ABA should ratchet up the standards for accreditation of law schools and make 'em crank up the admission requirements? Then the schools would be forced to take on the filtering role and the bars could be abolished?
Jeff... What on earth is this commitment to law business? (In the very face of the thousands and thousands of unhappy lawyers!)

Three years of law school isn't enough to demonstrate a committment, you need just one more month of having the last vestiges of a human spirit beaten our of your brain with the sharp end of a cheese grater to demonstrate commitment? Why not just put the poor bastards taking the bar exam in hair shirts and have proctors walk up and down the aisle striking people at random with bullwhips? Suffering builds character??

Posted by: Paul Gowder | May 27, 2005 9:58:00 AM

Hear hear.

If you can graduate from an accredited law school without being qualified to practice law (at least in the state in which the law school is located), there is a problem with the accreditation process. That is the problem that should be addressed. "Solving" the problem by erecting a fairly arbitrary additional hurdle for the students who've already committed substantial resources to a life path is foolish.

The argument that the bar exam measures competence in a meaningful way is ridiculous. If that were true, perhaps it should be a continuing legal education requirement for all practicing attorneys, to be taken every few years or so. Do any of its defenders believe that makes any sense?

Posted by: Scheherazade | May 27, 2005 10:21:01 AM

Dan,

You raise an interesting point in your post--that without a bar exam, the law schools would have to serve as the barrier to entry. As some might recall, law school served as this type of barrier in the not-so-far past. Unlike today, it wasn't smooth sailing once you were admitted to law school--law schools routinely failed a third of their incoming class.

Hence, the old canard that they used to say at Harvard on the first day: "Look to the left of you, and then look to the right of you. One of you will not be sitting here three years from now."

Is this what we want law schools to start doing?

Posted by: Laura | May 27, 2005 11:53:40 AM

Laura: why not? If someone's in that class of students that isn't going to be able to get over the bar exam hurdle anyway (or be a lousy lawyer if they do), what's wrong with saving the waste of time and resources and knocking 'em out at the earliest stage possible?

Posted by: Paul Gowder | May 27, 2005 12:00:20 PM

What about the people who go to law school with no intention of ever practicing? Law School and a legal education are not necessarily leading to practice.

I am not certain why you are so set against the bar exam? Do you think other accreditation systems for other professions are equally flawed?

Posted by: Joel | May 27, 2005 12:30:23 PM

Paul brings up a good point: the accredition process should be more rigorous. It is simply not ethical to allow law schools to remain accredited when less than half of their graduates pass the bar exam (I think Whittier law school in CA boasts a 39% bar passage rate, for example...). Combine this with some measure of clamping down on unaccredited law schools, and you would greatly reduce the number of law school students who are conned out of their money by schools that know that they have a statistically slim chance of ever passing the bar, let alone landing a decent legal job.

But honestly, Paul, is the bar really that hard? Is it asking too much of prospective lawyers to take one stinking bar exam? I agree that it seems a little ridiculous to have to take a new test every time you want to practice in a different state. But overall it seems that the legal bar exam is much less time-consuming than it could be. Actuaries, for example, make much less money on average than lawyers, but have something like 9 exams -- a process that usually takes new actuaries something like 6 years to finish. Of course, they don't have to go to 3 years of actuary school, but I think the overall certification process is in the same league as the legal process is...and when you take into account the fact that lawyers make so much more money than actuaries do, I think this fact belies your idea that the bar exam is some sort of overly-time-consuming commitment.

Also, the bar exam is meant to serve a different purpose than law school. Supposedly, law school gives you a theoretical training in the law, while the bar exam tests your practical legal skills (It does seem that most people agree that the bar exam doesn't always live up to this standard, but again, if this is true, why not IMPROVE THE TEST, instead of abolishing it). If you get rid of the bar exam and make law schools the sole gatekeeper of the legal profession, then the schools will have to start focusing on making sure that their grads get the practical training that was formerly tested by the bar. Most of the top law schools that now elect to focus on theoretical issues would then be forced to put at least some resources into practical training.

You can debate whether or not this would be a good thing for law schools to do, but I, for one, would not like it very much. I'm going to Columbia next year to get a good broad legal education. I don't want Columbia to try to prepare me for the NY bar exam (note that I still would like to take classes that have some bearing on what I want to do later in life...I'd just like these classes to focus on the theoretical sides of these practices and not the practical side).

Posted by: Jeff V. | May 27, 2005 12:53:50 PM

Jeff: We're agreed on the need to make accreditation standards much stricter.

The ease of an unpleasant experience to get through doesn't justify it's horrible unpleasantness and its disutility. You'll see... oh, you'll see... when you're sitting in some classroom with 100 other poor fools, listening to some barbri prof drone at you about the McNaughten rule -- a privilege that you or your employer paid $2500 for -- day after day, for 4 hours a day, not including book-study time -- for a month, then go into the exam room with 1000 other suckers and listen to some fascist from the board of bar examiners tell you that if you should happen to have a watch that beeps, you'll be taken out, airlifted to a slave mine in Siberia, and worked to death.

Sure it's easy. Sure, for many people, the bar exam is a "formality." So's doing your taxes. If doing your taxes provided no revenue to the government, would you still support making everyone suffer through it on April 15 as a demonstration of commitment?

Getting a root canal isn't "really that hard." I yet have no plans to go through one unnecessarily. Do you? (Perhaps young dentists should have to receive one, sans dope, in order to demonstrate their commitment to teeth.)

(Actuaries have licensure requirements? Funny old world, ain't it? Since when do you need any skills to discriminate against people based on age, sex, marital status, etc. etc.? It would seem like any moron with a whiskey-stained copy of "The Bell Curve" could produce some garbage like "young unmarried males drive worse, and the law requires them to buy our products, so lets SCREW 'EM! CHA-CHING!")

(I know of one person who was correctly filtered out by the bar exam hurdle: she tried to start early on the Virginia exam, was caught by eagle-eyed proctors and drug out of the room screaming. You'd think that someone like that would have been caught cheating in law school too.)

In terms of improving the test: what we'd really be talking about is close enough to abolishing it as to make no difference. Here's Paul's List of Necessary Bar Exam Improvements:

1. Throw out the multistate completely, which is just a bunch of idiotic multiple choice trick questions about -- with the exception of evidence and con law -- law that doesn't actually exist in any jurisdiction.

2. Have a practical portion of the exam (testing brief-writing etc. skills, like California's) in every state.

3. Make the entire damn exam open book, since the actual practice of law has nothing to do with remembering the difference between a condition precedent and a condition subsequent and everything to do with spotting issues and doing the research.

4. Seize Barbri's assets by eminent domain and give 'em out free or at marginal cost to the students: forcing every young lawyer to pay blood money to a bunch of robber-baron monopolists is just bad policy.

5. Permit students to take the exam in the middle of the third year of law school, rather than afterward, so they can have scores and start practicing right after they graduate instead of being in a deranged and twisted Hitchcock-movie like limbo of terror for months on end.

6. Test a wider range of areas of law, and cover each of those areas on every exam -- perhaps by giving different versions of the exams out in each administration at random -- to ensure that there's at least the risk that each person will be tested on something they might actually practice, as opposed to everybody being tested on wills or some hopeless garbage like that.

Those changes, which might make the bar actually worthwhile, would result in an exam that bears almost no resemblance to the current one.

(How about just adding a 4th, "practical," year to law school?)

Posted by: Paul Gowder | May 27, 2005 1:36:43 PM

Oh, and
7. Run the whole damn system on a federal level, test for a state (or states) and on state law as designated by the examinee, entitling them to be admitted to those states on the spot per the one exam.
8. Then prepare a little booklet for each explaining the distinct points of state X's laws as tested on the bar exam laws, which booklet will be handed out to a person seeking reciprocal admission and studied by them as part of a mandatory 10 hour CLE (offered by videotape at any time) with a two-hour multiple choice test at the end (offered by computer at any time) at which point they will be granted reciprocical admission into the new state by Congressional Commerce Clause fiat.
9. If barbri has anything left to do under this system after we've condemned all their intellectual property, bust 'em up into Baby Barbris like AT&T. And possibly have their board of directors tarred and feathered.

Posted by: Paul Gowder | May 27, 2005 1:49:47 PM

Ah, I must admit that your post wins the humor contest...and your ideas about reforming the bar all seem reasonable.

I do submit, though, that the LSAT enjoys some of the elements of facism and irritation exhibited by the bar. But you have to realize, by the time your average 21 year old gets to the LSAT's these days, they've already dedicated about a year of their life to filling in small bubbles with number two pencils in sterile rooms while straining to fight back the need to go to the bathroom, actually talk with the people around you, crack a smile, eat, drink, or do any of the other numerous things prohibited by ETS/LSAC/the rest of the Evil Empire. After taking the LSAT's, the SAT's, the PSAT's (twice), 5 SAT II's, 8 AP's, and several DMV tests, I simply would like to see members of the older generation suffer since you most likely were only subjected to one SAT. So complain not about the stinking bar exam, my friend!

Posted by: Jeff V. | May 27, 2005 2:23:44 PM

Paul, one practical problem about your recommendation is that it ignores our structure of government. While the concept of dual sovereignty is taken for granted in most cases, each State still has the right to regulate the privilege of practicing law within its boundaries. Despite my liberal leanings, I fail to see the commerce clause connection in point 8.

While I have some serious dislike for Barbri and how it is currently run, that alone does not justify to me the sort of gutting of the bar exam you propose. Putting the bar exam after law school makes sense, especially when one of the requirements in most states is graduation from an accredited law school. Now, unless we are getting rid of the requirement that lawyers graduate from lawschool to be licensed to pratice law offering the exam in the middle of the third year does not make sense.

I don't know what you want from testing "wider" areas of knowledge on the bar exam. How much wider do we get? Here is a fact situation: What claims exist? The elimination of State ConLaw Essay from the bar exam still anoys me, but I don't think we should get rid of it. We had State essays. They tested State law.

You seem very displeased with the bar exam. You seem to have the idea that it should have some distinct and perfectly defined utilitarian and measurable impact on the profession of law. But the bar exam is just that, the bar exam. It is the price to pay for the privilege of practicing law. I, for one, am not willing to say the practice of law is right and I am also not willing to federalize the bar exam as you suggest. Everyone goes into lawschool knowing that there is a bar exam at the end.

Posted by: Joel | May 27, 2005 2:34:08 PM

Jeff: I'd be happy if I could win the humor prize on everything! The rest is just hassle. (Where's the laughing Buddha when we need 'im?)

Joel: The right of the state to regulate the practice of law within its boundraries is subject to the right of Congress to regulate the multijurisdictional practice of law. That's a pure commerce clause issue. To the extent Congress thinks that the practice of law is an interstate economic activity, it has plenery power to regulate it -- and I think it's clear that this is the case.

My proposal would still test state law. It would just be centrally administered. Think of it like the GRE. You can take the GRE in a bunch of different subject areas. The bar-exam-as-gre would be administered in a similar fashion (and possibly similarly over computer): you'd sign up for the Ohio and Maine exams, say, and then you'd walk into your local federal testing center (which could be anywhere in the U.S.: no need to travel to Ohio and Maine) and get a test on federal, Ohio, and Maine law, and then get admitted to the Ohio and Maine bars.

Testing wider areas of knowledge just means testing MORE. It's insane to test wills all the time in every state but test IP and antitrust in none. Do it sort of on the panopticon principle: give each individual examinee a random selection of the available subject areas so that each examinee is at risk of being tested on each subject in exam exam, and test all major areas of law that way.

All this could be done by computer.

(Actually, in Louisiana, I DID get a state conlaw question. Somehow I passed anyway, despite being only vaguely aware that Louisiana HAS a constitution.)

As for the bar exam being "the price to pay for the privilege of practicing law," is that really all it is? Pure useless suffering to impose a barrier to entry? In that case, I refer you back to Daniel's suggestion of a pro bono requirement: why not make the busywork useful to society?

Posted by: Paul Gowder | May 27, 2005 2:54:55 PM

Oh: Joel, there's a difference between sitting for the exam and licensing. The rule ought to be "As long as you've both graduated from law school and passed the bar exam, you can have a license" (subject to character, etc., which is another rant). Instead, the rule is "first you graduate law school, THEN you pass the bar, then you get a license." By not permitting them to be done at the same time, you get the horror limbo period.

Posted by: Paul Gowder | May 27, 2005 2:57:32 PM

The reason I do not think there is a good commerce clause argument there goes to the privilege theory of law. That there is a commercial aspect to legal representation is incidental to the legal representation itself. I will cede that we could have a long, drawn out [and highly enjoyable] debate on the commerce clause implications here and that you may be right. ConLaw is one of my niches, so when they got rid of it from my State's exam, it was frustrating.

Centrally administered State law topics? First, I will say that I would have a problem with it being purely computerized. I am a technophile, but nothing comapres to the pen in one hand, and I say this with rather poor handwriting. That, however, should be discussed with character topic elsewhere. Back to the State law topics - Who is choosing the authors of the State law topics? Who is grading them? It seems that this suggestion takes the privilege out of the practice of law by denying a State the right to review, individually, the candidates who wish to sit for the bar exam. Having a J.D. is one thing and being licensed is another and GRE style strikes me as more of an entitlement hierarchy for admittance to practice law. Does this make sense? I am not certain that you and I will persuade the other to completely disavow our stated positions, but I understand your arguments and want to make certain that you understand mine.

Then again, I am rather glad that there was not a Constitutional Law question about my State's constitution. We are over 80 Amendments in and there are a lot of full-blown attorneys who have no idea what some it means. If you are ever curious, pull up the Arkansas Constitution. We only merged law&equity in 2000.

Posted by: Joel | May 27, 2005 4:24:19 PM

Really, I don't have much respect for state's rights in this area. Why should states individually have the right to determine who practices law individually when the legal problems that lawyers are supposed to be solving regularly cross state lines? That's the whole point of the commerce clause: a problem that is interstate in character can't be effectively dealt with under the authority of one state. Multistate criminal conspiracies, commercial transactions, and even family law situations where the parties are in divergent jurisdictions often require one client to deal with the same legal problem through different lawyers in different states. Is this wise? Is it rational? Is it efficient? I say no.

I mean, I do understand your arguments except insofar that I don't see the value of making the locus of the decision the state.

I'm also not sure what you mean by "an entitlement hierarchy for admittance to practice." Are you suggesting that my proposal would make admission an entitlement in the government-benefit-due-process-clause sense of the term? If so, are you suggesting that right now, the states have discretion to decline to admit people who have proven their good character, graduated law school, and passed the exam? If so, I don't think that's correct. A qualified applicant has at least enough of an "entitlement" to admission to qualify as a property interest justifying due process protection. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957)


In Schware, the Court stated the relevant rule of law as follows: "A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law... Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory."

In that sense, then, the states have no discretion to treat bar admission as a "privilege." It's an entitlement like any other state-granted license.

In terms of who writes and grades the exams: does it make a difference? I suspect the states would be happy to be relieved of the financial and logistical burden. If they didn't want to do so, they could surely be permitted to write the state law questions pertaining to their respective states, and to grade those selfsame questions, but I see no rational reason to have them working on federal law questions.

Incidentally, of my four bar exams, the only exam that had a state conlaw question was Louisiana. (Virginia still has the law/equity split, and a bunch of other arcane and idiot procedural rules besides.) I think I got that one right only because it was paired with a federal conlaw -- speech clause, no less, which I probably know as much about as anyone else in the country, Volokh, Smolla and Abrams excepted (maybe), -- and then part 2 was "and then tell us how it goes under the state constitution." I just took a percentage guess on the state constitution and claimed that the LA Sup. Ct. has interpreted their speech clause to go no further than the federal speech clause -- a fair guess in the South -- and probably got extra points on the federal part, since, as I recall, I actually cited cases.

Posted by: Paul Gowder | May 27, 2005 5:56:56 PM

Without benefit of this post or the great follow-up comments, I just left a way-too-long post over at the first post on this topic. It says much of what has been said above, but goes into the reasons to fix/kill the MBE much more. Hope something comes of this. Really, if states would do a Washington and drop the MBE (replacing it with something similar to what BarExam=Good suggested above), and if they would come up with a "bare essentials" text for attorneys wishing to transfer to that jurisdiction (and go ahead and test us on those essentials...fine), 90% of the problem would be fixed.

Posted by: Ryder | May 29, 2005 10:02:51 PM

I'm sorry, but why would it be an impermissible premise to suppose
that states pass bar exams in order to assist lawyers in maintaining
an artificially high price for legal services and advice? Absent any
commerce clause problems, it's surely "permissible" for states to fall
in hoc to rent-seeking interests and decide to maximize private
welfare rather than public, right?

Posted by: Will Baude | May 30, 2005 6:27:30 PM

I cannot help but wonder if those who argue for the current testing regime aren't really worried about loss of a feeling of exclusivity should the bar exam be abolished?
Secondly, I know of no study that has been conducted that would correlate bar exam scores and success in a legal career.Given that the circumstances that bring a client to need an attorney are not standardized, it seems to me that it is absurd to insist that we can devise a standardized test that can accurately predict how a human being will perform in the future when confronted with actual clients.
If we are concerned about competence, then the only true and fair way to tell is for the person to actually be placed in practice situations. While this could undoubtly lead to some surprising results(some great test takers, and graduates from brand name schools make lousy practioneers and vice-versa) as well as the loss of the feeling of exclusivity for those who derive reward from the present regime(mostly white and affluent students), the results of such an evaluative period would be much fairer and more illustrative of ability than the current system.

Posted by: sebastianguy99 | Jun 6, 2005 4:04:16 PM

I cannot help but wonder if those who argue for the current testing regime aren't really worried about loss of a feeling of exclusivity should the bar exam be abolished?
Secondly, I know of no study that has been conducted that would correlate bar exam scores and success in a legal career.Given that the circumstances that bring a client to need an attorney are not standardized, it seems to me that it is absurd to insist that we can devise a standardized test that can accurately predict how a human being will perform in the future when confronted with actual clients.
If we are concerned about competence, then the only true and fair way to tell is for the person to actually be placed in practice situations. While this could undoubtly lead to some surprising results(some great test takers, and graduates from brand name schools make lousy practioneers and vice-versa) as well as the loss of the feeling of exclusivity for those who derive reward from the present regime(mostly white and affluent students), the results of such an evaluative period would be much fairer and more illustrative of ability than the current system.

Posted by: sebastianguy99 | Jun 6, 2005 4:07:13 PM

Correlate these to a legal career? And what sort of legal career should we be using as our standard? Civil practice? Criminal practice? Defense or Prosecution? What about judicial clerking? A J.D. does not mean you are going to practice in any one particular way or method and penalizing, for example, students who want to be transactional attorneys by having a bar exam so heavily geared towards civil defense would be unfair. The bar exam is vague and tests in broad strokes for a reason.
Further, the assumption that "actual clients" will be involved and make a difference in whether someone should be licensed is absurd. Frankly, it would penalize anyone who wanted to spend their career in the more contemplative areas of the law rather than the private practice of billable hours. Both are parts of the legal community and we should not penalize one in favor of the other, which is what I hear so many of these recommendations to 'reform' the bar exam doing. Making a bar exam more practical does not mean you will be any more accurately testing the skills of what potential lawyers want to do. It only means that you are testing the 'practical skills' as far as private practice appears to go or the applicants.

Posted by: Joel | Jun 6, 2005 5:36:36 PM

The major problem with the bar exam system, as it now is, is the refusal of many states (almost all) to accept transfer of MBE (Multistate Bar exam) scores. This is indefensible since the test was designed to be standardized, so that a 170 on one test was equivalent to a 170 on an MBE test taken a year later (they adjust for minor variations in difficulty). Joe Covington, who largely designed the MBE, even said so. There have been good articles (particularly by Professor Andrew Perlman of Suffolk law school) noting that the refusal of states to accept MBE scores from prior tests probably violates the Privileges and Immunities Clause of Article IV of the U.S. Constitution. Once you have taken the MBE and obtained a high enough score (such that you would, if you obtained that score again, pass another state's bar), you ought to be able to be admitted to another state by just taking a state specific exam. I have written about this, in the June 2000 edition of the Journal of the Legal Profession. The state bars are suffering from inertia and protectionism. I have taken and passed 3 bar exams, Michigan, New Mexico, and Arizona.

Posted by: Mike Thomas | Nov 18, 2005 11:53:02 AM

http://www.saltlaw.org/BarExam.pdf

Posted by: John Doe | Jan 29, 2006 11:35:27 AM

Are you agree that The Bar Examination To Be Abolished?

Posted by: Maria Dita P. Ishii | Nov 21, 2006 12:21:12 AM

I have no faith that your school, from which I graduated, would serve as any barrier whatsoever. All GWU cares about is the tuition check. If they kick someone out, they lose revenue. That is, quite simply, not going to happen. GWU wouldn't even let me visit another school for a year because they would lose my tuition dollars.

That said, I can understand that the GWU professors probably want the Bar Exams abolished because then, instead of teaching critical thinking skills, they can do what they went into legal academia to do: indoctrinate.

Contrary to what the good professor claims, the bar tests an applicant's ability to spot issues and apply rules. Both of these skills are crucial to a successful legal career.

Posted by: joe | Feb 10, 2008 5:30:12 PM

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