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Wednesday, May 11, 2005

The Multistate Bar Exam as a Theory of Law

Picture_mbe_4 What is the most widely read work of jurisprudence by those in the legal system?  Is it H.L.A. Hart’s The Concept of Law?  Ronald Dworkin’s Law’s Empire?  No . . . it’s actually the Multistate Bar Exam. 

Almost all lawyers have read it.  Although the precise text is different every year, the Bar exam presents a jurisprudence that transcends the specific language of its text.  Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law.  It therefore comes as a great surprise that the Bar exam has received such scant scholarly attention. 

No work on law has perhaps been so widely read by those in the legal system.  And not only is the Bar read, but people study it for months, devoting more time to it than practically any other jurisprudential text.  It is unbelievable that such a widely read and studied text has barely been discussed in the academy.  In fact, legal scholars readily dismiss the Bar exam.  Despite the fact that the Bar exam purports to present the valid law in the United States, scholars don’t cite to it as legal authority.  Nor do judges.  The Bar exam gets little mention in treatises either.

It’s about time to rectify this situation and put the Bar exam in its place as the great work of jurisprudence that it is.

Beyond merely presenting rules of law, the Bar exam presents a full-fledged theory of law.  But what is its theory of law? 

I got my hands on the 1998 July Multistate Bar Exam, which is made available to Bar Exam takers as a sample practice test.  To truly understand the Bar, one must read through all its physical manifestations, but reading through more than one Bar exam was more than this author could bear, notwithstanding the great insights that it would have clearly produced.  I therefore leave further work on other Bar exams for future scholars in this young yet hopefully growing new field of study. 

The first thing to note is that this Multistate Exam comes on beautiful thick acid-free paper designed for indelibility.  This, I believe, is a testament to the authors’ (who remain anonymous) intent that the Exam be kept for years as a treasured centerpiece of any legal scholarly collection. 

I am also struck by how the Bar exam is a Protean work of jurisprudence.  It takes many different forms, and changes each year, but I believe its overarching teachings are the same.  Although it changes its form twice each year, it is still referred to singularly as the Multistate Bar Exam.  It is therefore, paradoxically, both one and many.  Few if any other works of jurisprudence come in such a pluralistic form. 

On to more conventional jurisprudential observations.  The Bar exam draws heavily from Ronald Dworkin, who argues that there are indeed answers to even the thorniest legal issues.  Departing from H.L.A. Hart’s open texture of law, where there are pockets of uncertainty, for Dworkin, there is an answer to all legal questions.  And so, too, on the Bar.  Every question has an answer.

The Bar states that one is to choose the best answer, and thus it does at least recognize that right-versus-wrong is too simplistic a way to understand the law.  But what does “best answer” mean?   The exam states that all questions should be answered “according to the generally accepted view, except where otherwise noted.”  We’re back to Hart again, with a kind of rule-of-recognition for the rules on the Bar:  The best answer is the generally accepted view.  But among whom?  Lawyers?  Judges?  Academics?  The public?  The Bar doesn’t tell us. 

The Bar draws heavily from legal realism as well as from more recent movements such as law and narrative.  The Bar instructs us about how rules affect people on the ground.  We learn the plight of those subjected to the law and how the law affects them.  The Bar exam presents itself as 200 stories about the law.  This is not a top-down theory of the law, but a bottom-up illustration of the way the law works in practice in the lives of individuals.  As Karl Llewllyn observed: “We have discovered that rules alone, mere forms of words, are worthless.  We have learned that the concrete instance, the heaping up of concrete instances, the present vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all.”

Despite its commitment to the concrete, the Bar diverges from legal realism in its view of the relationship between fact and law.  In a sharp departure from realist ideas, the law on the Bar is self-executing.  Consider question 101, which discusses how Dirk forcefully enters John and Marsha’s apartment, binds and gags John, and steals a diamond necklace from a safe.  John, in an attempt to unbind himself, suffers a heart attack and dies.  The question then asks:

Dirk is guilty of:

(A) burglary, robbery, and murder.

(B) robbery and murder only.

(C) burglary and robbery only.

(D) robbery only.

The exam answer key says that the correct answer is A.  But where’s the jury in all this? How can Dirk be guilty without a jury trial?  Are these facts correct?  Here, Dirk is tried-and-convicted without a jury!  What about Dirk’s constitutional rights?   

This attitude toward facts and juries pervades throughout the Bar.  Tort question 192 asks: “If Actor sues Vineyard to recover damages as a result of Vineyard’s use of the photograph, will Actor prevail?”  How can one really say for sure?  So much for the judges and juries that must apply the law – they are viewed as irrelevant by the Bar. The Bar tells us that the human element – the discretion of prosecutors, lawyers, judges, and juries – is immaterial to the law.   

But yet, one should avoid hastily concluding that the Bar’s vision of the law is not humanistic.  The Bar’s vision of the law is far more complex.  The Bar is, in fact, a very humanistic document.  We hear the harrowing stories of great loss and terrible wrongdoing.  We witness horrible crimes, bungled contracts, corporate malfeasance, and wretched accidents.  Each story involves people who have real lives, who suffer or rejoice.  Unlike abstract theories of jurisprudence, the Bar focuses on how the law affects particular people.  It is remarkable in its humanism. 

When one examines the substance of these stories, the Bar paints for us a powerful and telling picture of the legal system.  One notable dimension of the Bar’s depiction of the law is that many really good people get screwed in the system.  There are hurt little-old-ladies who don’t get to collect tort damages.  Dastardly criminals go free because their burglaries occurred during the daytime rather than at night.  (Indeed, the requirement that burglaries must take place at night is based on archaic common law definitions of crimes, which although having long been supplanted with statutory law, remain alive-and-well on the Bar.  Ironically, if one practiced the criminal law on the Bar exam, one might be disbarred.) 

Why do so many good people lose in the legal system?  Why is there such grave injustice in this jurisprudential vision of the law?  Here, the Bar is teaching us the legal positivist notion that law is separate from morality.  Despite rejecting Hart’s open texture of the law in favor of Dworkin, the Bar eagerly embraces Hart’s strict separation between law and morality.

In the end, the Bar doesn’t proffer a theory about how the law makes sense or why it is just or unjust or even how to make it coherent.  Instead, the Bar simply says that the law is.    This is a stark, almost existential view.  The Bar seems to be saying: “Here’s the law.  It helps some people.  It screws other people.  And that’s it.  There’s nothing else to say.”  What about whether the rules are just?  Whether or not they should be changed?  These questions don’t matter. 

Thus, the Bar is a complex and rich theory of law, one that requires further study.  I have only begun to scratch the surface of this great jurisprudential work.  And since it will continue to evolve, twice each year – once in February and once in July – it is continually being updated.  It’s a work of jurisprudence that just keeps on giving.  All of us should be very thankful indeed for the great efforts of the anonymous legal philosophers who continue to toil on this evolving jurisprudential masterpiece. 

Posted by Daniel Solove on May 11, 2005 at 09:08 AM in Daniel Solove, Legal Theory, Life of Law Schools | Permalink

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» The Multistate Bar Exam As A Work of Legal Theory: from The Volokh Conspiracy
Dan Solove offers a tongue-in-cheek theoretical analysis of the Multistate Bar Exam here. An excerpt:

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» a LAWYER'S blog from GoodShit
PrawfsBlawg: The Multistate Bar Exam as a Theory of Law What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart’s The Concept of Law? Ronald Dworkin’s Law’s Empire? No . .... [Read More]

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Comments

I think Mr. Solove owes me a new shirt and tie... as I spilled coffee all over them while reading this post due to uncontrollable laughter.

This has to be one of the instant-classic posts of lawblogs.

-TS

The Sophist

Posted by: Instalanche Visitor | May 11, 2005 9:44:31 AM

But it isn't a joke, is it? I'd probably say BarBri has more control over the law than the Bar Examiners (since if the 80% of test-takers who use BarBri answer a question one way, that becomes a right answer on the exam), making the Conviser MiniReview the real classic. That's the book we read over and over for months; the exam we see only for a few hours.

I recently built a cite to these materials into a Contract article coming out in the fall. So they are getting the attention they deserve from me.

Relatedly, I wonder if people use Bar Exam type questions in their finals, on the theory that law school is at least supposed to help students pass the bar (especially at lower-ranked schools where bar passage rates tend to be very important for a law school's reputation).

Posted by: Ethan Leib | May 11, 2005 9:57:53 AM

"But where’s the jury in all this? How can Dirk be guilty without a jury trial? Are these facts correct? Here, Dirk is tried-and-convicted without a jury! What about Dirk’s constitutional rights? "

You are mistaking reality (or, rather, a hypothetical reality) with the results of a trial.

Posted by: J Thomason | May 11, 2005 10:15:21 AM

What about the Multistate Professional Responsibility Examination (required for admission to practice in essentially all states), or the Multistate pPerformance Test (a California innovation now making its way into the admissions requirements of many states)?

Posted by: Richard Fagin | May 11, 2005 10:25:09 AM

Well, I had the honor of having the MPT included on my bar exam with the rest of it and it was not terribly inspiring or impressive, IMHO. Now the idea of the MBE as a normative theory of law is actually quite fascinating, both from a humorist's perspective and from an academic's perspective. Despite being well versed in criminal law, the term "agency theory of felony murder" had never come up in my law school career. Now, neither was this term familiar to the good people who write the criminal appeals briefs for this State ... and yet the MBE had 3 multiple choice questions referring to it. The following year, the curriculum specifically included the term "agency theory of felony murder" for what we had learned as felony murder. I must share this post. This may be the best post I have seen in some time.

Posted by: Joel | May 11, 2005 10:32:58 AM

While it's a joke - and a good one - I think you're on to something with this, at least in the sense that applying a critical eye to the central common experience of those becoming lawyers is worth attention. I suppose the post-modern among us would focus on the deconstruction of the exam as a method of critiquing it.

Posted by: TPB, Esq. | May 11, 2005 12:06:04 PM

I don't believe that this is a joke, nor should it be. Everytime I have sat for the MBE, I have thoughts much like those posted here. Of course, I have never used BarBri (I either used the notes of others or, in the recent case of the Tennessee Bar, enlisted the help of MicroMash) and tend to question answers on standardized tests more than the average fellow. My favorite line:

Ironically, if one practiced the criminal law on the Bar exam, one might be disbarred.

Indeed.

Cheers,

Rob

Posted by: Rob Huddleston | May 11, 2005 1:17:47 PM

Great essay. I loved it.

You missed one important, and rather serious, point. The Bar exam is also very feminist. Thus, for example, you will never find the generic "he" in any of its questions. It is either "he or she" or, egregiously, sometimes a generic "she", but in the world of the Bar, the anonymous, generic male pronoun, as used by Shakespeare, Swift, and Frost, does not exist.

Also in the same vein, the Bar inhabits a world where female farmers, mechanics, and murderers are common, as well as ( of course!) doctors and lawyers. The Bar is very anxious, it seems, to promote its gender-blind view of things on students, and if that means replacing reality with wishful thinking imagery, well, who's going to stop them?

This same type of liberal thinking pervades the LSAT. I recall gnashing my teeth as I sat through essay after essay ( to test my "reading comprehension" and apparently, my patience) on important topics like African American studies and Indian folk dance. That's the state of the law testing today.

Posted by: Robin Meeker | May 11, 2005 3:31:10 PM

This is an EXTREMELY funny post. You should send it to Green Bag or something.

Due to an unfortunate habit of moving I've taken the MBE 3 times (where's my constitutional right to interstate travel, huh? huh?). Insane.

Posted by: Paul Gowder | May 11, 2005 4:34:52 PM

This same type of liberal thinking pervades the LSAT. I recall gnashing my teeth as I sat through essay after essay (to test my "reading comprehension" and apparently, my patience) on important topics like African American studies and Indian folk dance. That's the state of the law testing today.

Hilariously, the correct answer to every question on the LSAT is "Women and minorities are just as good as or better than the white man." When in doubt as the correct substantive answer, the test-taker should pull out this ideological filter and see if an answer can be found by applying the foregoing principle.

Posted by: Brendon Carr | May 11, 2005 9:17:09 PM

I think that the author has a very good point. Yes, maybe you might get disbarred if you practiced MBE criminal law.

But, just as most all of us now have suffered through the Harvard 1-L / Paper Chased type of teaching, we have all had to pass the MBE.

And as a result, to some very great extent, IHMO, it has colored our collective view of what the law is. I view it somewhat as adverse selection - those who accept (at least as long as it takes to pass the MBE) their version of the Law, pass, and those who don't, don't.

And note that in many cases, our memory of much of the law outside our own practice areas is colored by what we have to learn to pass the test. So, to some extent, it is like Blackstone's of another generation.

I also find interesting that if enough people answer the question one way, that is considered the correct answer. If this is true, then BARBRI is probably even more powerful here. Indeed, I keep my BARBRI books around as a quick guide to get my feet wet in areas in which I am not familiar.

I am somewhat troubled by the feminist leanings alluded to by a previous poster. This would suggest that in addition to a legal view, the MBE is also advocating a world or social view, in a normalitive way. Note that I am not opposed to many of feminists' points, but being male, believe that it is time to swing back and look at things from our point of view again.

Posted by: Bruce Hayden | May 12, 2005 8:51:45 AM

Personally, I wish that I could have just skipped law school and gone straight to the bar exam. I passed my first bar by acing the MBE (they didn't even grade my essays). And the study aids have gotten good enough that law school now is superfulous to passing the bar.

The first time I took it, I knew I could get in on just my MBE scores, so stinted on my essay prep. I took a full MBE test a day for the last two weeks, of course, correcting them to see where I was amiss. Then, I took two days off. Sat for the test, and got out of each session early within the first 3 hours, and scored in the 98th percentile.

The last time around, I had a computer program that allowed instant feedback on whether I got the answer right or not. It worked like a dream, but as I was working full time and had been out of law school for most of a decade, scored 10 points lower (still well high enough to pass). Technology is only going to get better.

All through law school, I had profs who railed at us to take the bar prep classes. I am so glad I didn't listen to them. Took what interested me, and was able to pick up the rest with ease during bar prep.

Posted by: Bruce Hayden | May 12, 2005 8:58:29 AM

I took the 1998 MBE and passed, but I will never sit fo another bar exam again. The dumbest thing about the MBE is answering all of these questions off the top of your head. Normally, that would be malpractice, but it is encouraged, in fact demanded by the MBE.
Another problem, why do they use Common Law? Sure that is the supposed basis, but if you look at the arson questions, where it is asked if burning your warehouse is arson, (which it is not, since it is not a dwelling) it makes no sense, and is contrary to every state's law as presently fielded. My suggestion is to use the Uniform Laws Commission. Sure, some states adhere to the old style Common Law in some sections, but the ULC at least makes an attempt to be common sensical.
Actually, I would rather see a three day test conducted in a law library, or on line, which could present a range of actual legal issues to be researched and answered. Pulling it out of your rectum would be punished, using the most recent changes as decided by a flip flopping Supreme Court would be rewarded. Just like in real life.

Posted by: Steve Eschenbacher | May 12, 2005 9:57:01 AM

I will admit to having never picked up on the ideological filter mentioned by posters in either the LSAT or the MBE. . Perhaps my time trialed testing thoughts were just not registering any data that was extraneous to the law.
It is a strange use of the common law, as Steve noted. I also think the comment about the MBE being blackstone is close ... but my votes goes to the Convisor Mini-Review and other Barbri materials. I also keep them on my shelves and pull them out to refresh my memory on a new area and occaisonally just to remind myself about topic areas that don't enter into my daily life. They are the most basic building blocks of the modern lawyer ... or are they? We are, therefore, held within un-, sub-, or supernatural forces.

Discuss.

Posted by: Joel | May 12, 2005 10:07:57 AM

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