August 10, 2005

Solove: Bar None

by Guest Contributor

(Daniel J. Solove is an Associate Professor of Law at George Washington University Law School and blogs at PrawfsBlawg and Balkinization.)

Earlier this summer, I posted on PrawfsBlawg my thoughts on abolishing the Bar Exam. Yes, as radical as it may sound, I believe that the Bar Exam should be abolished. Not just amended. Not just tweaked. Not even modified substantially. No. I believe it should be abolished entirely. So all you graduating 3Ls stand up and cheer! I'll accept generous tips, too. Actually, itís too late for many of you, since you've already been put through the torment, having just completed the exam and wasted most of your summer. Now you probably want the torture inflicted on others -- if so, the Bar is little more than a hazing ritual, one with about as much social value as guzzling beer while blindfolded and upside down.

Here's what I initially wrote:

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 number 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.

I received quite a response. I was surprised that many stood up to defend the Bar Exam, which definitely demonstrates lawyers will defend absolutely anybody or anything, no matter how dangerous or odious.

Replying to these comments, I wrote another post explaining my position in more detail.

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. [...]

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.

Here's a brief listing of some of my arguments for abolishing the Bar Exam:

1. It doesn't test on the kinds of skills a good lawyer should have.

2. It often tests on obsolete legal rules.

3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.

4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.

5. The Bar often weeds out people who don't have the money to take an expensive course like BarBri. Certainly, there are the unlucky folks who take BarBri and fail, but this does not frequently occur.

6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?

7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.

8. Nobody really uses the rules as formulated on the Bar Exam. As I've written elsewhere, if one practiced the criminal law on the Bar Exam, one would be disbarred!

9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, itís much easier to make it past one Bar Exam than through three years of law school.

One of the main arguments for the Bar Exam is that it will help ensure that lawyers are competent. Our profession doesnít do a very good job of this. It provides a meaningless entry exam (the Bar) and then requires attorneys to waste their time and money on expensive continuing legal education (CLE) courses. In the end, the only real way to ensure that lawyers are competent is for the profession to crack down on incompetence. Many a time, judges wince through incompetent lawyering and accept incompetent briefs and pleadings. Many an ineffective assistance of counsel case contains egregious actions by the attorney. It shocks me that attorneys can engage in some of these actions brazenly in front of judges and prosecutors without being taken to task. In short, the Bar Exam has little to do with competence.

So that's why we should just get rid of the Bar Exam. Throw it away. Burn it. Bury it. And go to a system where lawyers-to-be spend some time helping the community while honing the necessary skills.

August 10, 2005 12:22 AM | TrackBack

I agree with you 100% . . . is there any way to get the Virginia Congress to abolish it? Can you somehow get support from other professors and practitioners and petition the state government? Maybe if Virginia takes the lead, other states will follow.

Posted by: John Doe at December 6, 2005 11:07 PM

I could not agree more. I passed two bars at once over a decade ago. I should not have to "prove" myself again, not that passing the bar is proof of anything.

The 15-18 jurisdictions that refuse to grant full faith & credit to attorney admissions from other states are simply in the business of restraining trade. The ABA agrees - in 2002 they advised those bars to grant reciprocity. Some listened, but others persisted in their draconian refusal to provide any means of reciprocity. This recalcitrance includes refusing to allow the transfer of an otherwise passing MBE score because the taker did not physically take that MBE in the "new" locale. Same test at the same time nationwide, but if you were coloring in circles 200 miles north, tough for you.

I was forced into such a jurisdiction by my spouse's military orders. As you may know, there is no option to refuse those short of separating the family, yet I can't even earn a living. I have never been more frustrated by anything that is permitted in America. A Canadian asked me, "But isn't it the United States of America? Why is each state allowed to act like it is a foreign country?"

Posted by: Tortured in FL at February 27, 2006 11:00 AM

As a law grad who is aboult to take the exam tomorrow, I completely agree. If we were to actually practice law the way we take the bar exam, we would be disbarred.

Why should we have to remember law when if we relied on memory in practice we would be committing a serious ethics violation?

I think a test that tested "lawyer" skills would be more useful, but then again, that's what law school was for. I think it might be useful to have us draft complaints, reaseach legal issues, and learn important law from the jurisdiction that EVERY lawyer should know (like the ethics rules or something).

What I think is even more ridiculous is the MPRE. It's not even close to a good approximation of ethics. The question are poorly written and it tests your multiple choice test taking ability more than the rules.

I might not be so angry if there was more reciprocity, though...

Posted by: Leila at July 24, 2006 10:26 PM
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