I don't carry any particular water for the bar exam. My own experience with the hoary rite of passage was more miserable than most, I suspect. My hotel was about to be indicted for fraudulently holding itself out as a national chain, and was infested with bugs besides. The Albany cabbies had to be individually threatened before they would take me to my out-of-the-way testing site, and even then they charged me a clearly extortionate rate for the dubious favor of following the law. Even the free breakfast at my fraudulent hotel was a wretched disaster -- unless one has a particular liking for stale donuts and cold coffee sweetened with sugar accessible only after mining a dirty looking crystal mountain.
And all those rather specific details leave aside the worst part of all, common to most test takers -- two months of grueling unpleasantness at the hands of Bar-Bri, a oligopolistic juggernaut charged by accident with teaching American lawyers the vast swathes of law considered beneath the dignity of most law schools. As one of my friends said during a long afternoon hunched over the outline for Trusts, "Assuming I don't get a fatal disease sometime before the end of my natural lifespan, this may well be the worst experience I'll ever have." Given that we're both pretty lucky people, in the grand scheme of things, I think I can agree.
Is there, therefore, anything left to be said for the bar exam? Probably not. But if I were to defend it, I would start by telling a story passed to me by a friend a few weeks ago.
He was talking to an older lawyer he had met at some event, perhaps at his church, and they were having difficulty finding common threads to talk about. But then my friend let slip that he was preparing for the bar, and the older lawyer's face lit up. How did the youngsters these days study for the bar? Did most take BAR or BRI (which turn out to be the precedent companies to the current monolith)? And so a rather unlikely link was forged between this much older lawyer and my friend. They had things to talk about. And enjoyed their conversation.
Perhaps that kind of link is too weak a thread on which to hang months of preparation and angst. But the legal profession as profession doubtless is built upon just those slender connections of common experience, both as a matter of historical perspective and in the nearer term. While studying Roman law in an itinerant fit of curiosity, I discovered that Roman students too had dealt with many of the same problems of jurisprudence that so enriched our own first year experience: how does one distribute liability when an accident is no one's fault? what to do when farmer Horaceís cow wandered onto Justinís farm, and ate his grain? The feeling I had on reading those basic cases was precisely the transcendent feeling that I used to have when as a historian I read Herodotus -- the sense that two millennia ago, a similar group of similarly balding bookish men were hunched over similar tables thinking about how society might best be ordered.
We as lawyers and law students, in other words, are engaged in the very ancient job of withdrawing violence from the public sphere through reason, and that sense of history, that grim weight of responsibility, is what I believe to be the best hope of maintaining professional standards today. And in the same way, the bar is one of those threads that binds lawyers here in America, that allows lawyers to immediately have something in common, that makes even groups of young lawyers-to-be driving to Albany in rented Chevy Malibus smile at the sight of a small law office promising the best possible representation in your very own personal injury case. We all take the bar. We are all, therefore, identifiably part of the same profession - automatically colleagues, no matter what law we practice.
I don't actually believe that these important considerations justify the bar exam. There are many other methods of socialization that perform the same function, though perhaps not as uniformly; most of us go to law schools that teach similar subjects, and we're grounded in the same tradition of legal reasoning. In that context, the bar probably does emerge as an illegitimate obstacle to professional accreditation, an artificial hurdle protecting existing lawyers from competition. But for those of us who have some sympathy for ordered hierarchy, and tradition, the bar can't be immediately dismissed as the anachronistic error of an earlier generation. At least, that's my story unless I failed -- at which point my feelings towards the thing are certain to be less tender, and wax less lyrical.