(The Sardonic Lawyer blogs at ... The Sardonic Lawyer.)
Before flailing away at this topic, I would like to thank PG for extending the invitation to expand on my recent comments. Now to business...
As I have stated previously, I cannot agree with the notion that the bar exam should be scrapped in its entirety for a single, simple reason. The bar exam, however imperfect, is one of the few means our profession has for ensuring that newly-minted lawyers have enough of a grasp of the fundamentals that unleashing them on an unsuspecting populace is not absolutely certain to end in disaster. There is no better approach that is as economical, easily implemented and monitored, and likely to be effective than the bar exam. Period. And even if another approach to establishing initial professional competence does materialize, the bar exam should continue to be used unless it is rendered wholly redundant.
But why, I can hear some of you asking, is there a need to test for minimal competence in the first place? Doesn't the fact that the individual in question graduated from an ABA-accredited school naturally lead to the conclusion that he or she is at least minimally qualified to be licensed? Well, no. ABA accredation is largely a pro forma matter, dependent on several quantifiables (standards for admission, size of library, impressiveness of the professors' curriculum vitae, etc.) and a few intangibles (general reputation, overall impression, swimsuit and talent competitions), none of which individually or in aggregate really has much if any bearing on whether the students are being taught anything useful.
You think I'm just extracting this from my posterior? Let me clue you in on part of my basis for this assertion. In my state, the most prestigious/ well-respected/ highest rated law school you can attend is at the University of Texas. Now, nothing against UT grads personally, but in my years of practice I was told by others and observed for myself firsthand that new UT law graduates know very little about actually practicing law in Texas. For the most part they catch up quickly after getting into the sink-or-swim of practice, but for a time their value is limited to their potential. As many have remarked, the hardest thing about UT Law is getting in (gradeflation and similar matters are a debate for another day), and yet this has no effect on the school's ABA accreditation. If it weren't for the Texas bar exam, I don't think most UT grads would have even the slightest knowledge of basic Texas procedure and state-specific law.
But, you may counter, is this really a problem? Wouldn't this be sorted out by the ordinary course of events, with unqualified attorneys being pushed out of the market by competition and disciplinary boards? Again the answer is no. I hate to sound paternalistic, but generally speaking most individuals who need or want legal representation are poorly equipped to sort out for themselves who is and is not a good choice for legal services. Worse still is the fact that our profession (at least in Texas) does an exceptionally poor job of policing its own.
Now, assuming for the moment that we're on the same page in terms of need to guarantee minimal competence, I want to briefly address assertions that the bar exam is really little more than professional hazing and/or a mechanism for limiting competition. I cannot argue with the notion of the bar exam as professional hazing except to say that, viewed in the most positive light possible, this hazing is relatively benign and is as much a rite of passage for many as it is a form of harassment. The vast majority of individuals who attempt it ultimately pass the bar exam. And to be perfectly candid, The Sardonic Lawyer has a hard time not approving of anything that causes large numbers of attorneys to suffer a bit.
As for the assertion that the bar exam is a tool for limiting competition, I not only am unaware of any credible evidence to this effect, but I would also suggest that if in fact the bar exam has been used in this manner, it was and is a spectacularly ineffective device. Seeing such cabalistic machinations in this context requires a significant predisposition to conspiratorial thinking and/or a hard libertarian bent, neither of which is particularly easy to address in this (or, for that matter, any) forum.
So, what does The Sardonic Lawyer think should be done to fix the bar exam? I have a few preliminary suggestions:
(1) Ditch the multistate. This portion of the exam seems to me to be the least likely to have any impact on professional competence. Also, while I've made clear my misgivings regarding ABA accreditation, it's a fair assumption that any accredited school will at least make passing reference to the basics covered here. The emphasis on rote memorization and question-answering strategy over true understanding is just annoying.
(2) Give test-takers official guidance on the content to be covered and an official study guide. Nothing strikes me as being more stupid about this process than the proprietary stance of the bar examiners on what information will be covered in the state-specific sections. What can they possibly be worried about? Are they afraid that those preparing for the test will actually study only the material relevant to testing, instead of trying to brute-force memorize hundreds of pages of BarBri outlines? Any law professor who insisted on taking such an asinine approach would be summarily executed by his or her students, preferably by being bludgeoned to death with hornbooks and Emmanuel's outlines.
(3) Hit the basics. Nobody gives a damn if you happen to have a thorough command of the most esoteric and obscure rules of law, so what possible grounds exist for testing on these rules? The rule of thumb for what to test is simple: if it's something the average practicing attorney could be legitimately expected to know off the top of his or her head, it's fair game. When is an answer due in a civil case? Legitimate question. What are the elements of buggery? Not so much.
(4) Make evaluation as objective and real world oriented as possible. This dovetails nicely with (3), above. Testing should be limited to the greatest extent practicable to issues with clear-cut answers. Also, I think it's time to dispense with spot-the-issue essay questions. We certainly want attorneys to be as
logical and organized as possible, but testing my ability to properly nest subissues in an essay answer and otherwise follow the IRAC formula is missing the point.
(5) Test ethics, dammit! Maybe this is a Texas-specific complaint, but I think it's perfectly ridiculous that an individual can become an attorney in our state without demonstrating any more mastery of the subject of ethics than passing the MPRE. Stop requiring the MPRE, if for no other reason than it can be passed by remembering three rules: behave like a saint, rat on your friends, give the money back (I'm only partially kidding here).
That's all I have at the moment. Further bulletins as events warrant.