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Monday, December 05, 2005

Should I Change Casebooks?

Comes the news today that Kathleen Sullivan, prominent law professor, former dean of Stanford Law School, and co-editor (with the late Gerald Gunther) of my con law casebook, apparently failed in her recent attempt to pass the grueling California bar.  I don't write this in too Schadenfreudian a spirit: she's a bar member elsewhere, she deserves the accolades she's received, she was busy with a million other things and surely will pass the next time she takes it, and one of the reasons I have not sought California bar membership despite having moved here is the combination of the real effort involved and the very public nature of the results.  There but for the grace of God etc.  But it is worth publicizing, both for the inherently gossipy nature of the information (law professors need a Defamer of their own), and because of the number of law students who read this blog.  I offer it in a mixed spirit of warning and reassurance: 1) Be careful -- even prominent law professors can fail the bar exam!  2) Be reassured -- even prominent law professors can fail the bar exam.  And if/when you pass, you can pat yourself on the back all the harder.

Posted by Paul Horwitz on December 5, 2005 at 12:25 PM in Life of Law Schools | Permalink


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» Law Professors and the Bar Exam from Preaching to the Perverted
There's an interesting article in the W$J today: Raising the Bar: Even Top Lawyers Fail California Exam. I guess it's news because Kathleen Sullivan (Constitutional Law Superstar and former Dean at Stanford) failed the California Bar Exam. Over at Conc... [Read More]

Tracked on Dec 5, 2005 3:49:07 PM

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NEWS WITH OOZE TM LAUNDRY DAY EDITION Delay's Money Laundering Charge Sticks, Conspiracy tossed plus HOT FLASHES. DELAY LAWYER DECLARES MORAL VICTORY the state conspiracy law did not apply to the election code until a year after the 2002 [Read More]

Tracked on Dec 5, 2005 9:14:03 PM

» Law Professors and the Bar Exam from Preaching to the Perverted
There's an interesting article in the W$J today: Raising the Bar: Even Top Lawyers Fail California Exam. I guess it's news because Kathleen Sullivan (Constitutional Law Superstar and former Dean at Stanford) failed the California Bar Exam. Over at Conc... [Read More]

Tracked on Feb 6, 2006 4:19:33 PM


Exactly. If the Los Alamos atomic scientists were subject to our current penchant for standardized examinations before they could work at that lab, Hitler would have achieved the atomic bomb before we did, and the rest would be history.

Posted by: Mary Katherine Day-Petrano | Dec 8, 2005 4:58:45 PM

If I'm understanding the quoted Quinn Emanuel partner correctly, the firm probably seeks out those from lower-ranked law schools, who, like Ms. Sullivan, did poorly on a standardized test...in their case, the LSAT. They're just too smart for the test, right?

Posted by: John | Dec 8, 2005 1:33:22 AM

What type of accommodation on the present standardized Bar Examination do you propose would remediate (1) prohibited pre-offer of bar admission mental (medical) examination, (2) a testing structure that uses pencil and paper multiple choice and essay format to serve as a very poor proxy (read "fails to correlate statistically") to measure hands-on performance skills? I just don't see any possible solution to accommodate on the presently structured Bar Examination itself for those for whom this type of examination poses nearly insurmountable barriers. And take it from one who passed the California Bar Examination with about the most extensive accommodations possible.

And why should a disabled person have to take 4-6 of those standardized examinations and test prep courses giving up income and tools-of-the-trade assets to repeatedly afford each such effort in order to eventually manage to eek over the passing edge of an examinatio tnhat does what -- measure non-essential, marginal functions? Imposing barriers like this on the disabled is illegal, a violation of Federal law. The ADA is an unfunded federal mandate on the States. The Unfunded Mandates Reform Act of 1995 excludes the ADA, meaning the States have an obligation to fully fund the federal mandates the ADA imposes on the States.

Why are disabled people expected to give up their housing, health care, heat in the winter, and skip meals, even give up the assets by which they earn a meager income to support themselves to keep trying to surmount these barriers? Last time I checked, States are prohibited to surcharge disbaled people this way by the ADA's Title II anti-surcharge regulation, and the ADA guarantees the disabled they can retain "independent living" and "economic self-sufficiency." Your proposal has the practical effect of obliterating those guarantees. The presently constructed Bar Examinations have a disparate impact on the disabled. Failure to reasonably accommodate is one issue; disparate impact is another. Your proposal only remotely addresses the former without resolving the latter.

I suppose there is no better way to say it than Thurgood Marshall -- separate is not equal. By not reforming the present flawed standardized multiple choice and essay Bar Examinations and ensuring law graduates leave law school with their license, States are imposing unequal burdens on the disabled vis-a-vis the non-disabled. They are treating them as separate and unequal. In terms of the difference between disability anti-discrimination laws and the Civil Rights Act of 1964, treating disabled the same as everyone else can give rise to inequality by reason of the immutable handicapping charactersitics of their disbailities. The Supreme Court has held in at least one ADA case that preferences are sometimes required to make the playing field equal where disabled people are involved.

The resistance to reform the flawed, defective, presently discriminatory Bar Examination to eliminate their screening out of the disabled is predicatable and many disabled people have seen such argument before. Unfortunately, they do not overcome the more weighty need for reform.


Posted by: Mary Katherine Day-Petrano | Dec 6, 2005 7:31:09 PM

Mary's post is really interesting. I actually didn't mean to address the disability issues raised by the bar, but rather to bracket them (hence my observation above that the "points that the bar tends to exclude lower-income or disabled people seem like weighty objections"). Though it seems to make sense that people with a systematic difficulty memorizing information shouldn't be disadvantaged by that on the bar, this could be addressed by accommodation, and I'm not sure whether it abstracts to a criticism of the bar more generally.

Posted by: Dave | Dec 6, 2005 5:34:33 PM

Actually, the California Bar Examination is far easier to pass for a disabled person than, say the Florida Bar Examination. The reason is the performance testing, open-book style, although a closed universe of facts and research data. If one can excel on the performance test, that alone can bring up the overall score to overcome the delporable barriers posed by the memorization-testing of trivia under the MBE and Essay. Despite former Florida Supreme Court Chief Justice Rosemary Barkett's Commission recommending the Florida Board of Bar Examiners implement performance testing in Florida, the FBBE has remain rigidly resistant and the present Florida Bar Examination continues on with the defective MBE and Essay testing -- and no performance test.

Dave does mount a point with some superficial appeal, that is the notion three years of law school would pose barriers to entry because of the flawed premis all peope who attend law school take off three years from work and pay their own tuition. The problem with arguments based on superficial appeal is they usually do not hold up to a critical thinker. I know for a fact that most disabled people work as much as possible during their three years of law school, and they also "max out" so to speak on federal student loans to finance their law school tuition. In other words, the taxpayers and US Department of Education (or other lending and guarantor parties under the federal student loan programs) fund and "pay for" the tuition.

It does not take the memorization cognitive mental ability testing of the MBE or Essay for a person to know a conclusion that is unsupported by its premises will fail. I have a big problem with Dave's skirting the weighty issue of why mental examination testing designed by the American Psychological Assn. should be used to determine who becomes a lawyer and who doesn't. This is no different than the method of the Florida Board of Bar Examiners practice of calling people suspected of mental disbaility into informal and formal hearings with their psychiatrist Dr. Mutter present in the hearing room to render a pre-offer of bar admission mental examination diagnosis. (And No, I have not been subjected to this, I only know several people who have, and these individuals did not have a mental disability history but rather were 'mental illness suspects'). The California Committee of Bar Examiners doesn't even do this, but then again their APA mental cognitive MBE and Essay tests accomplish similar screening. My point is, why aren't people outraged to know their mental status is being tested? I already know I have autism and learning disabilities, but how about people who went through life with a history of being perfectly 'normal,' suddenly being classified as having a mental disability that can jeopardize their employment and career (there is a lot of stigma against mental disabilities in the community of legal employers). And, if I can meet the "essential fuctions" "with" reasonable accommodations, for what other purpose is my disability relevant? Because of irrational fear?

Can't the States design an examination that examines the "essential functions" of what lawyers actually do? The hands-on performance tasks they must do in their line of work? How is this so difficult?

And here's where Dave's flawed premise really falls apart. The US Department of Education will chase down any disabled or other law student who is bankrupted by the gap between law school and licensure and BAR/BRI's price gouging to enforce lifetime student loan repayment -- yet US DOE refuses to enforce the Rehabilitation Act of 1973 or Title II of the Americans With Disabilities Act against the State Bar Examiners who erect these disability barriers to licensure upon which student loan repayment is based. Really, besides the disabled person who struggles in poverty for years to achieve licensing
while enormous sums of student loans default being harmed by this, it is the taxpayers who trusted the system to work without one part of it creating a red tape bottleneck who are getting a real kick in the pants. How does the present system benefit anyone other than people who are wealthy enough to survive it? And even they pay for the financial effects of this broken system in more taxes.

In my opinion, and I know many other disabled people who feel the same way, the US DOE should be enforcing the RA and ADA against States' Bar Examiners for monetary recovery of the unpaid student loan funds caused by discriminatory barriers to entry to licensure erected by the Bar Examiners. Why should the Bar Examiners have no personal responsibility to ensure a more inclusive, integrated licensure program?

Of course Dave's point that law school graduates come out with a lot of theory and no hands-on performance knowhow is a valid point. I can remember writing my first motion actually filed in a court, and it was a pretty good novice attempt at using the theory I learned in law school, but a far cry from the skill set one needs to litigate in various state and federal courts and administrative agencies on an ongoing basis. I agree law schools should perhaps require a 4th year as a sort of residency clinical praticum to make transition from theory to hands-on performance skills. This is something that can and should be fixed. But that does not make the present Bar Examinations an accurate measure of the "essential functions" a lawyer is required to perform. To day so is to confuse to different problems and mix up cause and effect.

As far as the idea the standardized multiple choice and essay testing does not test memory alone, I would have to disagree with Dave. People with certain types of disabilities have a different thinking process from others. The method of constructing a test question to ask “list five exceptions to the rule against perpetuities”, or more indirectly test the same thing by a series of issue-spotters where you read a fact pattern and apply the law to it ("knowing the rule" (because you’ve memorized it)), presupposes a linear thinker. That is a left brain ability. Some people are more right brained (autistics for example), and the thinking process does not work that way, not in a linear fashion. If I were presented with the type of test question Dave suggests, everything I previously knew about the rule against perpetuities would become confused (whereas it was not before I read the question) and I would not be able to go much farther than to try to read, remember all of, and comprehend the call of the question (reading passage) in the test question, much less grapple with that short-term memory task AND regurgitate the memorized five exceptions.

On the other hand, if the test questions poses an empty page with nothng on it, and I am asked to write, say, a persuasive motion, and provided LEXIS or WESTLAW (or even a closed selection of legal materials), together with documents from which to ascertain the relevant facts, in doing the task of writing the motion, I can recall the relevant rule or exception from my nearly 100% photographic memory, I almost never err -- not verbal memory recall, but as in reading the photograph of a page in a law book or computer screen where I read like from a photograph of the page the language of the rule. Surely if my skills were deficient because my thinking is *different*, then I would not have a Federal District Court Judge attesting to the sophisticated level of my litigation skills, as many other lawyers and judges have similary attested in the past. I have never prepared written pleadings from sheer memorization, and at most oral hearings I do not need much more than a crib sheet of scribblings no one else can read or understand to 'jog' my memory recall in order to recite argument from my long term memory.

I think the fallacy Dave falls into is a misunderstanding of short-term working memory vs long term memory, and what tasks are required to place pleadings and documents in written format as well as those required to prepare for oral presentations. The Bar Examinations test short-term working memory abilities by requiring an interactive of the memorized trivia with reading passages contained in short-term working memory, not questions that test straightforward long-term memory tasks within the context of the question being performed. A disabled person can identify long-term memory recall many times from recognition of patterns and context, and within the performance of open-book style research and drafting can complete, say, a pleading in written format that is indistinguishable from someone else who is a liner thinker and does not have short-term working memory deficits. While the end result does not reveal the disability, the method of how the result is achieved, i.e. nature, manner, and conditions under which the task is performed, does reveal the disability. If a person can achieve a competent end result, why do we tolerate present Bar Examinations that test the method of achieving that end result used to screen out the disabled from licensure?

I just do not see any "essential function" a practicing lawyer actually does that requires testing of short-term working memory deficits. If short-term working memory were an "essential function," surely courthouses would not need law libraries and judges would not need computers to recheck the law on a given issue on the spur of the moment. As far as local jurisdictional requirements, well, anyone who understands civil procedure, appellate procedure, local rules, and standing orders, and knows how to check a particular judges individual standing orders can figure out what is required. But this is a research skill, an "essential" skill not presently tested by most States' Bar Examinations. Again, if one knows the context and roadmap of where to research the answer, not a memory bank of trivia, it is easy to perform the proper skills.

I just don't think a disabled person who can actually perform the hands-on "essential functions" tasks of a lawyer should be denied bar admission because the present Bar Examinations are impermissibly conducting mental examinations and testing non-essential, marginal short-term working memory deficits. That is a classic example of discrimination by reason of disability. And it cannot be justified because 'normal' people like Dave are not barred entry to licensure by the discriminatory examinations. The relevant measure is whether disabled people are barred by such barriers.

Someone asked, well, if the present Bar Examinations are flawed, what better approach is there? One thing for sure, success means not repeating the same failure. To analogize the flawed standardized Bar Examination to the space shuttle's defectice fuel tanks, NASA can keep sending up shuttles with cracks in their fuel tanks and keep gluing on foam to try to put a bandaid on the problem, but ultimately the failure is a structural flaw and sooner or later another space shuttle is going to disintegrate in flames and along with it a lot of astronauts. That is why the better approach would be to redesign the space shuttle, and by analogy also the Bar Examination.

The ADA suggests alternative assessment methods may be required. Such as? A job demonstration, a portfolio of a person's actual work product, another States' passing Bar Examination score, or -- the old diploma privilege should be dusted off and returned to service. These methods would provide far more accuracy than the flawed present formulation of the standardized multiple choice and essay mental exaination Bar Exams, and would provide people an immediate transition from law school to licensure and also prevent huge federal student loan defaults. Of course, BAR/BRI's market share would plummet, but if BAR/BRI is earning such profits from participating in a Bar Examination process that erects barriers to entry to licensure of the disabled, and as a de facto instrumentality of Title II Bar Examiners, perhaps the US DOE should ask BAR/BRI to contribute to repay some of disabled people's defaulted student loans. And if non-ABA accredited law schools are a concern, perhaps their graduates should be required to take some type of Bar Examinations. It would seem there is a superceding overriding Federal interest here. Why should graduates of ABA-accredited law schools who took on significant student loan debt to afford a higher quality education be penalized by non-accredited law schools? This is like saying a John Hopkins doctor should be penalized for the educational failures of a truck driving vocational school, i.e. impermissibly burdening disabled people in one group to spay for the preventable shortcomings of another.

If those suggestions to reform the present flawed Bar Examination do not have any appeal, perhaps, as The Bar Examiners' recent articles on the subject suggest, perhaps a several day National Bar Examination should be crafted like the medical examination reforms: 12 or so actors pose as patients (clients) with various problems and communication styles, the applicant diagnoses the problem and enters treatment in a real-time computer program; once initial diagnosis and treatment is entered, there is no going back to correct mistakes, rather the applicant must then proceed forward in time to re-diagnose or change treatment or even fix the prior mistake (if the patient hasn't died of the mistake), or if the initial approach was correct to move forward to a competent resolution of the problem. This real-time practical hands-on performance examination requires actual research skills -- in the context of a lawyer, it could include access to LEXIS or WESTLAW or even manual use of a law library, and a changing real-time legal problem -- e.g., for example, file complaint, other side reacts, maybe an unanticicapted party intervenes, oops, an indispensible party as inadvertently left out, judge rules against because motion was not in proper form, take corrective action, etc., until a successful or unsuccessful resolution of the problem is achieved, with a measurement of efficiency, correctness of the steps to resolve the problem, and the error rate. A range of competency could be crafted to classify those who demonstrate competency from those who need to improve certain skill sets.

I just don't see why the States should want to continue a broken system and one that discriminates against certain protected classes of people who can actually perform the "essential functions" of a practicing lawyer, all the while with many ripple effects upon their income, their family, their creditors, the economy, and the availablility of legal services to other people of a protected class by their peers. The present Bar Examination system is one that just doesn't make sense to anyone other than those who benefit from the present restraint of trade/barriers to entry 'I got in, now pull up the drawbridge' mentality. It is time to change this broken system.

Posted by: Mary Katherine Day-Petrano | Dec 6, 2005 3:44:15 PM

Here is an alternative to the existing Bar Exam: California now has a "performance test," in which you are given the facts and the relevant law, and you have to write a memo or a brief. That might, just perhaps, actually measure something one needs to do in law practice. So get rid of the hyper-picky multiple choice junk. Get rid of the substantive essays too. Use all performance tests. No memorization would then required. In fact, no studying would be required. Which is good. Competent lawyers and law students could waltz right through this kind of test, as they should be able to do. All an examinee would need is to have learned something in first year legal writing. Those who have trouble with such stuff could spend the summer working on it --which would do more for the Bar than having them memorize useless junk.

The problem is, do we trust the graders to know what a good brief or memo looks like? It would be interesting to know what the examiners thought of Dean Sullivan's answers on the performance test. Were her sentences more than seven words? Her paragraphs more than four lines? Did she fail to make nice, neat headings or underline key words for emphasis, so that a grader spending 20 seconds on her answer could spot the expected stuff? (That's what I learned about in my very expensive BAR-BRI course.) Did she have And just who grades these things anyway? Do we feel confident that they are competent?

Which leads to what might be a better solution: graduate from an ABA-approved law school, and shortly thereafter you will get a law license in the mail. My understanding is that Wisconsin already does that for its in-state graduates. It would be interesting to see -- empirical study anyone? --if legal incompetence is more widespread in Wisconsin than in California. What kind of odds would Las Vegas give us on that one, do you think?

One final note: what poor taste the WSJ editors showed in running this needlessly embarrassing story. The public trusts the legal profession enough to think that failing the Bar actually says something about one's ability. What a cheap trick.

Posted by: AnonLawProf | Dec 6, 2005 2:16:26 PM

Actually, blogenfreude, there is no tax on the CA bar.

Posted by: Jeff | Dec 6, 2005 1:29:41 PM

I passed NY first try ... California just scares the crap out me ... they have TAX ... oy.

Posted by: blogenfreude | Dec 6, 2005 10:24:31 AM

I don’t want to come off as a wholesale defender of the bar. I’m sure there’s a better alternative out there, though I haven’t seen one proposed. I just don’t buy the claim that because Sullivan failed, it must be flawed.

I also don’t disagree with the above points that law is more than just mere memorization—of course this is true. However, my recollection is that it’s not really fair to say that the bar tests mere memorization—it tests a combination of analysis and knowledge of rules. If the questions asked “list five exceptions to the rule against perpetuities”, then one might be able to say it was nothing more than regurgitating rules. But the bar—essay and multiple choice alike—is a series of issue-spotters where you read a fact pattern and apply the law to it, not unlike a law school exam. Knowing the rule (because you’ve memorized it) is only one step in this analysis.

The points that the bar tends to exclude lower-income or disabled people seem like weighty objections (though neither apply to Sullivan), and may be in some tension with my democratization point. This makes me wonder though why people don’t question whether law school itself (at least given its current structure) isn’t an unfair barrier to entry? It’s heavily skewed toward people with enough wealth and freedom that they can take off three years of their lives (except for night school attendees, of course) and pay for tuition. And at the end of that time you often have a head full of high-minded theoretical ideas and no real idea about what the on-the-ground rules of a given jurisdiction are or what practical skills are required in the profession.

Posted by: Dave | Dec 6, 2005 9:28:12 AM

I can give another perpective on why the 50 States' Bar Examinations should be abolished in their present form. Disabled people cannot pass the standardized versions now used, specifically because they are pencil and paper tests that serve as an extremely poor proxy for actual lawyering performance skills and abilities required to practice law.

Essentially, all the present Bar Examination versions test is (1) ability to memorize huge amounts of useless trivia that is not applied in real time as situations are changing; (2) the ability to retain employment sufficient to continue paying the inflated fees to retake the same examinations one has already passed; and (3) the disability of short term working memory deficits precluding many people with disabilities from quickly reading and memorizing the call of the question long enough to apply all the trivia previously memorized under closed-book circumstances.

It is no surprise The Bar Examiner contains articles admitting these standardized Bar Examinations are designed by the American Psychological Assn. to serve as mental examinations to select only people with a certain type of cognitive ability and weed out those perceived to have the wrong mental disability.

The problem is two-fold: (1) the present standardized Bar Examinations do not test the "essential functions" of all of the real-time hands-on performance tasks lawyers actually do in the practice of law -- in Americans With Disabilities Act terminology, and (2) the ADA prohibits pre-offer of Bar Examination mental examinations -- See recent 7th Cir. ADA MMPI pre-employment testing case for more illumination.

If a person cannot sit down at a desk with a legal research data base, factual documents, and the call of the writing project and perform a Bar Examination that is equivalent to an actual lawyering task, then the test does not measure the "essential functions" of what a practicing lawyer actually does. If a practicing lawyer has to prepare and study trivia and things not used in the actual practice of his or her area of law before the Bar Examination can be passed, then obviously either the practicing lawyer lacks the requisite skill set, or the present Bar Examination formulation does not test the "essential functions." When people like Kathleen Sullivan fail the California Bar Examination the fallacy of teh former proposition is exposed.

Most lawyering tasks are open-book, so to speak, at least with respect to preparing pleadings, transactions, and the like; even oral argument and most aspects of a hearing or trial can be prepared ahead of time in roadmap formula by an open-book research and note-taking method. If a trial attorney is not preparing for expected evidentiary objections in advance of the trial, for example, how can there be effective lawyering? Certainly there could be the element of surprise in the trial scenario, but that is nothing a good ABA-accredited education cannot prepare for -- spotting the relevant issue. So why do we tolerate a highly mismatched closed-book test of open-book tasks, which serves as prohibited pre-offer of bar admission mental examination, and overwhelmingly inaccurate measure of the "essential functions" of what lawyers actually do in their law practice to function as a barrier to entry to the profession -- one in the disability context that has an enormous disparate impact on the disabled.

And, this may shock some proponents of Board Specialization, but how does a generalized multi-subject Bar Examination meet the compelling state interest test and survive strict scrutiny under the ADA as a measure of, say, a lawyer who would practice in civil litigation and ADA cases, or bankruptcies, or the like in Federal Courts? The point is, the Bar Examinations are not narrowly tailored, and a person may be able to meet the "essential functions" in a specialized area of law immediately upon admission; why erect barriers to such sepcialization admissions, and whle it would also seem the other general areas of law the person would not actually practice would have to fall to the wayside as impermissible marginal functions?

An ABA-accredited graduation (the old diploma privilege) measures much more of the "essential functions" than the presently constructed Bar Examinations -- for example, as argued but rejected in PGA Tours, the Title III ADA golfing case, sometimes the ability to work over the long haul without fatiguing or losing focus on the goal or becoming depressed over interim battle losses matter -- all qualities required of a lawyer to win a long term litigation case (i.e, staying power) and one that are more accurately measured by the consistency and ability to complete three years of law school and a J.D. than by a 2-3 day stanrardized performance skills by pencil and paper proxy test. Another "essential function" law school measures that present Bar Examinations do not is one's research abilities.

I do not mean to distress the multijurisdictional folks, either, but the ADA mandates a superceding, preemptive uniform National mandate -- the 50 States do not get to erect inconsistent admission criteria. Under the ADA if a person qualifies to perform the :essential functions" of a practicing lawyer in one State, by virtue of the ADA's uniformity mandate, that person must qualify in all other States.

So why is there so much opposition to a discussion of reforming the process of licensing lawyers and abolish the present Bar Examination as a historical anachronism that erects barriers to entry to far too many protected classes?

I would invite and grant my permission to anyone who cares about this issue to file an amicus brief about the Bar Examination in my United States Supreme Court Petition for Certiorari case now pending, Docket No. 05-7771.

Posted by: Mary Katherine Day-Petrano | Dec 6, 2005 12:31:21 AM

While anonprof alluded to the key problem of the bar exam, memorization of useless facts, the point needs to be further developed. Great lawyers are not recognized or valued for memorizing the finer points of any area of law. (As the infamous Paper Chase drove home, the guy with photographic mind was not up to the task). Assuming successful passage of the bar, a lawyer will never again be prohibited from consulting the applicable statutes, caselaw, etc. Indeed, if any lawyer proceeded to do so, there would be accusations of malpractice.

One could make an argument that graduating from an accredited law school should be sufficient, but the bar exam is too ingrained within a profession driven by precedent to be abolished. But that does not mean it should not be reformulated to test what lawyers actually are paid to do.

On a related note, since this is a forum for law academics, I am curious as to what types of exams profs on this blog give their students and if anyone can come up with a compelling justification for the in-class, timed, closed-book exam.

Lastly, a brief note on the democratization point. The bar exam is a standardized test, like any other, with all its attendant problems. Most notably, those that have the resources to pay for Bar review courses have a significant advantage over those that do not, which includes students from lower-income backgrounds (who have already piled up significat debt from law school), those choosing to enter public service or those that are not going to work for large, corporate firms (and therefore do not get the bar expenses paid by those big firms).

For an unexpected angle on the burden of bar review costs, see the NYT article from the Sunday business section on the anti-trust lawsuit filed against BAR/BRI...

Posted by: Daniel P-L | Dec 5, 2005 11:36:02 PM

This is a nice debate. It's particularly ironic that it comes on the heels of a New York Times article about an lawsuit against BAR-BRI alleging that the company cornered the bar review market and used monopoly power to overcharge students. Talk about timing!

I am not persuaded, in the end, by most of what Dave says in his comments. As far as I'm concerned, if Kathleen Sullivan can't waltz through the Bar Exam without a minute of study, then it is the Bar, rather than Dean Sullivan, which has a serious problem. Step back a minute and ask: why does failing to memorize a bunch of picky exceptions to exceptions to exceptions to rules make her any less qualified to practice law than if she had taken the time to do so? Democratization, quality control -- they just don't work as justifications.

Which brings me to two particular problems with the California bar exam (which I suffered through many years ago and obviously still haven't forgiven). First, it tests one's knowledge of trivia. Unlike Dave, I see nothing incoherent about criticizing this emphasis. Law is emphatically *not* a super-duper detail-oriented discipline. To the contrary, at its finest it's something of an art. One does not need to *memorize* Bar Exam trivia to be a great, or good, or merely competent lawyer. In law school, we don't teach obsessively the local rules of a jurisdiction, thank goodness. Any lawyer, trained in the art of legal research, can and should look such rules and authorities up when necessary. Instead, we teach mostly techniques of legal analysis and reasoning and theory -- because theory is what one needs to turn one's detail-grubbing legal research into persusaive arguments and coherent analytical points. It's the ability to use theory in day to day work that makes one a great lawyer, and yet theory is entirely absent from the Bar Exam. What law prof would give a final exam that tested not reasoning one's way through ambiguities, or applying familiar modes of analysis to unfamiliar areas of law, but rather picky details of legal rules themselves? To force students (after a high quality legal education stressing theory) to focus on trivia is just harassment, not quality control. It's not democratization, but dumbing-down.

Second, as Dan M. suggests, just what's with the idea that a person who has passed another state's bar nonetheless has to take California's? Most other states allow reciprocity. California doesn't. That's not quality control; it's a wholly unnecessary barrier to entry. That's not democratization; it's a protection racket for unaccredited law schools, whose students don't enjoy reciprocity outside of California.

Which brings us back to where we started: Do we really, on reflection, want to force the Kathleen Sullivans of the world to take time away from Supreme Court arguments in order to recollect the details of race-notice recording schemes? Do we really want to deter competent, experienced lawyers from around the country from moving to California unless they are willing to suffer though a picky test that doesn't test much that's local anyway? Something has to change.

Posted by: AnonLawProf | Dec 5, 2005 10:40:24 PM

I don't think I understand Dave's defense of the CA bar. The suggestion is that the bar, in this case, is acting in the public interest, by insisting on quality. But, as is clear, that's a ridiculous suggestion; there's no one in CA who needs to be protected from KS's lawyering.

Dave suggests that the bar's focus on minutiae isn't inconsistent with the demands of law, and, just a paragraph later expresses no surprise that KS, who, like most lawyers, is a specialist (unlike most, she's capable of practice at the highest levels), isn't familiar with the minutiae on the bar. If lawyers aren't familiar with the minutiae, why is focus on the minutiae required?

Posted by: anon | Dec 5, 2005 10:34:08 PM

It's funny, I almost ended up in the article written by Bandler today. Spoke with him on the phone the other day and he was interested in whether the bar exam should be abolished altogether, a subject Dan Solove has written about here on this blog. On the merits, I think Dave Fagundes is right. If it's true that KS didn't study for the exam very much, as the article indicated, then the fact that she didn't pass is hardly an indictment of the bar. Of course, that doesn't mean we should have fifty state bars. That "federalism" strikes me as somewhat absurd (and the product of typical local rent-seeking). Where's the logic of NAFTA when you need it?

Posted by: Dan Markel | Dec 5, 2005 8:17:32 PM

Quality control is one form of a barrier to entry. Question here is whether it's a good one. All the criticisms I've heard of the CA bar--most of which boil down to "it's picky"--seem incoherent. Law is a profession that requires enormous detail orientation, and a test that requires understanding of law's minutiae doesn't seem out of step with that.

Nor do I think it's a terrible idea to have an exam that tests one's ability to know the actual legal rules that apply in the jurisdiction--lord knows law school doesn't do this job very well. And the notion that Sullivan should have sailed through the bar without studying strikes me as misguided as well. She's been a constitutional specialist for decades since graduating from law school--why is anyone surprised that she fell short on a test of specific legal rules after failing to study for it? Much of law is learned, not intuitive.

I say this all after hating every moment of studying for and taking the CA bar. It sucked enormously, but I did the work like everyone else and now it's behind me. This is the other point about the bar that I kind of like--it's democratizing. Everyone, no matter whether you barely graduated from an unaccredited school or whether you're the former dean of Stanford law--has to do it, and thus has something like an equal shot to be part of the profession.

Posted by: Dave | Dec 5, 2005 6:37:43 PM


Thank you for posting on this matter. Your levity is altogether appropriate, but there is a serious point lurking here too: the (California?) Bar Exam is a scandal. Kathleen Sullivan's failure brings that home in a way that all the abstract arguments in the world could never do. Indeed, it beautifully illustrates what we've known all along: the bar is a barrier to entry dressed up as quality control. That we determine who is fit to practice law by assessing how well folks memorize largely pointless, picky points is disgraceful; that we have weeded out Kathleen Sullivan in the process simply reprises that tragedy as farce.

Posted by: AnonLawProf | Dec 5, 2005 5:09:41 PM

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