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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. 

Posted by Daniel Solove on May 25, 2005 at 01:01 PM in Daniel Solove, Life of Law Schools | Permalink

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» The functions of the bar exam from Ideoblog
Dan Solove on Prawfsblawg asks: So why does the Bar Exam persist? [Read More]

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» 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]

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Comments

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

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

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

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

Two comments:

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

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

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