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Wednesday, May 25, 2005

On Abolishing the Bar Exam (Dubitante)

Daniel Solove has provided an interesting post, below, on the bar exam.  Let me add my two cents on this issue, because I think it raises various complicated issues, and as regular readers now know, the overlong, equivocating post is my local specialty.  (The "hat tip" -- and Lord, how I tire of blogologisms -- for the title goes to Mark Tushnet's article on the accommodation of religion.)

I readily grant that the bar exam is cumbersome and difficult.  I also grant that, in practice, the bar exam serves as an entry barrier -- especially, because of differing state reciprocity rules, as a barrier on movement between states.  I should note in fairness that it is only one of many barriers to membership in the bar, along with the (generally but not universally applicable) requirements of an LSAT, a four-year degree, and a degree from an ABA-accredited law school.  Having correctly pointed out that the bar exam often serves guild-restrictive practices, I think Daniel is right to question it.

But I'm not convinced it should be abolished.  Consider the relationship between the bar exam and legal education.  The bar exam takes the heat off of law schools with respect to the expectation that they teach everything, and teach it with a practical orientation.  (It does not completely remove the burden, because bar passage affects both ABA accreditation and US News rankings.  But it ameliorates it.)  And, Harry Edwards notwithstanding, that is not entirely a bad thing.  Law schools have moved far more firmly into the broader academic environment of the university, although they still retain a substantial element of pure professional education, and I think removing the bar exam requirement would tend to push schools back into the practical education camp.  That has its merits, but I think it would be a backwards move. 

Daniel proposes a term of pro bono service as a substitute, and I suppose that's why I was moved to write, because I am a member of both a US bar and a Canadian bar (the Law Society of Upper Canada, to be snooty) and have some experience with versions of both approaches.  Canadian provinces generally favor something like the approach Daniel mentions: a prerequisite for membership in the bar is a term of service, known as articles of clerkship, with a law firm or some other legal entity involving work under a supervising lawyer.  It is (generally) paid work and it can involve private, public, or non-profit entities.  Obviously, you can get much hands-on experience, and that's to the good. 

But requiring an articling experience is itself an entry barrier.  Not every student finds a position.  As you might expect, the difficulty of finding a position is often greatest for minority students, older students, and otherwise disadvantaged students.  If the proposal were limited to pro bono positions, the availability problem would be even more acute, and students without financial resources would find the entry barrier -- working for free prior to entry to the bar -- quite meaningful.  (If, by "pro bono," Daniel means not only "free" but "public-service-oriented," I would also question that, for ideological reasons, but perhaps that issue can be set aside for now.)  In addition, not every lawyer wants to accept the responsibility of an articling student; perhaps not every lawyer should, since a proper articling experience (and not all of them are) would involve a meaningful investment of time to design appropriate assignments and supervise.  In short, although there are good and bad reasons to erect barriers to entry, some form of barrier cannot be avoided.   

Moreover, unlike the bar exam, an articling experience may cover only some areas of practice.  That, I suppose, is one reason that most Canadian bars require both articles and some form of examination.  It is not clear from the post, but I take it Daniel isn't looking for anything like a year's pro bono work.  If so, what a student learns in a more limited time may fall far short of the mark in giving them useful training and opportunity for monitoring -- unless the bar designs a rigorous set of requirements for the training period, in which case the availability of willing supervisors will drop considerably.

Don't get me wrong.  I think Daniel's questions are good ones; and I also think I benefited a good deal from my articling year, although my first year of legal practice in the US, with a law license, served similar purposes.  But I would not rush to replace one experience with the other.  There are compelling reasons to think about requiring all law students to do some pro bono work, or an externship, etc.  (Although this will require cutting back on coursework, and throw us back to the question of whether we should eliminate the 3L year.)  But either way, even 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. 

What should we do, apart from contemplating some degree of practical experience before graduation?  Well, we could rationalize this entry barrier better than we have.  The bar is moving toward complete reciprocity, and with the possible exception of Louisiana it should move the rest of the way.  To ensure ongoing monitoring, we could make CLE requirements more meaningful; after all, doctors often have to requalify in their specialties.  The bar exam could ask more practical- and skill-oriented problems -- a trend that is, in fact, occurring.  And to the extent some states set a fixed passage rate, it should be eliminated, since the question ought to be one of the threshold level of competence and not the number of entering professionals.  I welcome other suggestions.          

Posted by Paul Horwitz on May 25, 2005 at 04:12 PM in Life of Law Schools | Permalink


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Tracked on May 25, 2005 9:51:38 PM


Georgia DUI lawyer Howard J. Weintraub. Criminal and DUI lawyer gets DUI cases dismissed!

Posted by: Mike Georgia | Oct 29, 2005 7:38:35 AM

On the point of civil rights, even when Constitutional Law is tested, i.e., race, gender, alienage, disability is never included in the list of protected classifications. This results in (1) no one in the Bar ever taking the time to learn what the Americans With Disabilities Act or Rehabilitation Act of 1973 is about, and (2)institutionalization in most attorneys' minds, that it is ok to neglect reasonable accommodations for the disabled in Court proceedings.

How can anyone say, for example, that bringing a heavily drugged, delirious man by ambulance to a Courtroom on a stetcher for "trial," and deciding the case against him when he is obviously unable to "participate" is acceptable? Yet, this type of situation arises routinely here in the local Florida Courts in Pinellas County. (The "Human Resources Manager" -- doubling as the budget cutter -- decides if someone gets a reasonable accommodation and whether such denial would deny due process).

So, while everyone learns bogus generalized test-taking "law" to "qualify" to meet the essential functions of what a lawyer actually does in the practice of law (much different functions than what is tested), no wonder there is no compassion, no humanity, a very high risk of error, and a lot of licensed lawyers running around mis-managing cases, clients, and trust accounts --e.g., bungled death penalty cases. A faulty Bar Examination and bar admission screening process.

Mention that a Florida State Court might have to follow federal law, or that federal preemption might apply to invalidate a State statute, and you will (1) get "the blank stare," and (2) be laughed out of the Courtroom -- incurring Fla. Stat., Sec. 57.105 sanctions to boot for your audacity to suggest there is even a Federal government ("tort" reform, aplied to civil rights).

Today's Bar Examination process is truly a system out of financial and quality control, and out of touch with providing competent legal services to the public.

Try finding a licensed Florida lawyer to bring a Title II Americans With Disabilities Act case against a governmental entity. Even the local legal aid office refuses to provide pro bono services for ADA cases that might result in recovery of attorneys fees and an actual monetary remedy for the disabled. Legal aid in Florida would rather warehouse the disabled on SSI disability benefits that do not cover the cost of housing, creating an entrenched homeless population, than open opportunities for the disabled to help themselves through reasonable accommodations enabling them to work.

One would be better off getting in a car accident, because there are personal injury car accident attorneys in virtually every strip shopping center across the State of Florida. And tort law is covered on the Bar Examination, if one can remember not to begin, "May it please the Court ... the answer is "E," all of the above."

Posted by: Mary Katherine Day-Petrano | May 30, 2005 8:51:38 PM

The question is, what GOOD does the bar exam do? I agree with you on every point you make about the problems with the alternatives. However, again, why the bar?

After all, the "law" that is learned for the bar exam is hardly "practical." Take the multistate (please): Criminal law that exists in no jurisdiction, contract law in fashions that couldn't possibly come up in practice, tort law that, again, is the law in no one jurisdiction, and evidence -- ok, perhaps evidence is actually related to practice.

And then there's the essays. I've taken (and passed, duh) four bar exams, due to my proclivity to move from state to state without staying in one place to get entitled to reciprocity in the new place... each one of them, as I can recall, has had at least one wills question. Wheeeee. I guess the wills practitioners are all REALLY COMPETENT, eh? Because, obviously, those of us who practice, oh, say, federal civil rights law (title VII, 1983, etc.) aren't, because that hasn't even been covered by a subject area on any of those bar exams. Neither has any IP area, antitrust, etc. etc. Tax was only on one.

What's the point??

(And lets not forget that you have to read the dormant commerce clause out of the constitution to permit the bloody thing in the first place.)

Posted by: Paul Gowder | May 25, 2005 9:44:05 PM

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