The Bar Exam Isn't Senseless, and Neither Is Law
The Wall Street Journal airs Elizabeth Wurtzel's attack on the bar exam:
The common denominator among the bar-failers in my class at Yale Law School—and there were a few—was a complete inability to comply with senseless rules; they weren’t the best students, but they were the tartest and the sharpest people—and the least likely to accept the constraints of Big Law that make neither financial nor intellectual sense: the fifty-state survey to prove a negative, the memo to nowhere, the repetitive brief that says nothing and gets read by no one. The inefficiency of law and litigation in practice begin with the complete waste of effort that is its licensing ritual.
"Are there other, better ways," the Journal asks, "to control the quality and quantity of lawyers in society? Does the bar exam reward the wrong skills and abilities?"
There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination. It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law. It is also a mistake to think of the law as a set of senseless rules. The students who fail the bar can't work with any set of rules. There are virtually no students at the top of the class who don't pass the bar. Indeed the insistence that intelligent students can deal with rules that make "neither financial or intellectual sense" gets it exactly backwards. I am never hired to explain rules that everyone understands. I work in areas that make no financial or intellectual sense, where the herculean task is to put some order in a tiny corner of the overall situation. The inefficiency of law and litigation does not begin with the licensing ritual. It begins with the silly statutes and convoluted rules that legislatures and courts put in place. You could repeal the bar tomorrow and nothing would change on that score. Ms. Wurtzel turns out to be a graduate of Yale Law school. But an expert on the bar examination she is not.
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Jul '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law.
[... ] There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination.
It appears to me that the problem is broader than just an issue with Yale.
I am entering my first year of part-time law school next month. During my preparation I have come to understand that after 3 or 4 years of law school one needs to take an expensive course to cram in order to get through the licensing exam.
I am left wondering why a schooling process costing many tens of thousands (if not hundreds of thousands) of dollars doesn't prepare us for the bar exam?
Re: The Bar Exam Isn't Senseless, and Neither Is Law
"I am never hired to explain rules that everyone understands." One sentence--a kind of intellectual death-ray--and the opposing argument turns to dust.
Richard, would you do me a favor? Remind me never to cross you.
May '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
I agree that the bar exam is a useful process (so is the review- and you can't survive the review without the basic classes, or- generally- the exam without the review). In fact, it is the most clear and obvious case of "teaching to the test" that I have ever seen. And you learn the basics of law in the process, which is why all the keening against the NAEP and NCLB rules leaves me absolutely cold.
What is dead wrong is the ABA restriction on being able to even TAKE the bar exam after completing coursework; the material is very standard. Those rascals control accreditation, and prohibit anyone from "non-accredited" schools from taking the test, no matter how well they can handle the material. And they apply rules to accreditation that restrict alternative learning mechanisms from eligibility. I suspect that the big powers are afraid that some small correspondence school like that religious one in Illinois (I think it is Oak Brook) will embarrass them. This is a pretty clear lawyers antitrust issue.
Abraham Lincoln, if he completed his apprenticeship today, would not be allowed to sit for the bar in many (if not most) states.
Jun '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
It's been 35 years since I took the bar exam and passed it. I hated studying for it, but it did test a level of competency--it certainly was not looking to identify those invaluable "tartest and sharpest people," a characterization that isn't true in my experience. The people who flunked either never learned the necessary information in law school or didn't bone up on it for the exam. That doesn't sound either "tart" or "sharp"--down on the farm we call it just plain "dumb."
Re: The Bar Exam Isn't Senseless, and Neither Is Law
Let us all agree that Yale Law School does not prepare anyone for the bar exam. Like Richard and Liz Wurtzel, I'm also a Yale grad. But Yale is weird, even unique: it has very only one semester of required courses, only two grades (honors and pass), and little classroom focus on learning the legal rules. It focuses on learning fancy theories, particularly those of the faculty. In other words, it's good prep for the young future law professors of America (you even get the same days off).
But just because Yale doesn't train practicing lawyers doesn't mean that a) law schools in general are good at it, or b) that the bar exam has any real relationship to one's success as a lawyer. Most students no matter where they go, I believe, pay thousands of dollars after graduation to attend cram courses to prepare for the bar exam. Only a hardy (or foolhardy) few, I bet, dare take the bar based on what they learned in school.
More to follow.
Re: The Bar Exam Isn't Senseless, and Neither Is Law
The bar itself, if memory serves, is a series of multiple choice questions that test mostly memorization of rules learned in the first year. But that has little to do with whether someone will make a good lawyer. I knew someone in law school with a photographic memory -- he could recite exactly the text of a case after reading it once (or, more importantly, the pages from a cliff notes summary of the case). But he couldn't adapt that memorized rule to a new set of facts, which is what law practice will require; his mind didn't work that way. So even if Liz Wurtzel failed the bar exam, I bet it has little predictive value for her lawyer skills. In the interests of full disclosure, Liz Wurtzel and I were college classmates -- I even edited some of her editorial pieces for the Harvard Crimson. Let me just say that her writings of 25 years ago were more in the spirit of her Prozac Nation than Story's Commentaries on the Constitution. You can guess which ones would be more fun to read.
Jun '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
Hmm, "the least likely to accept the constraints of Big Law". Sounds to me like perfect candidates for Obama to nominate for SCOTUS. No requirement to pass that silly bar exam, either.
Jul '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
"they weren’t the best students, but they were the tartest and the sharpest people..."
just the kind of person you want at your cocktail party, eh?
And of course, people with photographic memories can reel off huge chunks of any books they have read, but IF I AM PAYING SOMEONE $400 per hour, I expect him to KNOW THE DAMNED LAW AS IT IS WRITTEN! (And more important, how to keep me out of court)
May '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
Does one size truly fit all? Or is the bar exam a failure of an industry to adapt to an ever widening diversity of goals and means? To my amateur eye, fields of law seem to vary nearly as much as medical pursuits. Should the same test qualify to work a lawyer dealing in divorce settlements, a lawyer dealing in music contracts, and an attorney general?
As the sale of roadside lemonade should not be regulated to the same extent as the sale of homes and factories, I wonder if the practice of law likewise does not merit equal regulation and qualification in all categories.
And how similar are organizations like the ABA to the guilds of old England? Is it perfectly satisfactory when non-government organizations are given exclusive governmental power (the power to decide who is or is not eligible to work in a field of occupation)?
May '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
As John says, the MBE is required in all states and is pretty difficult multiple choice. But almost everyone passes that. Where they lose it is on the essays, and on the "practical" section (in California), where you get a scenario and have to do a real "as though you are in practice" exercise, such as outlining a brief, etc.
The problem is that the essays test memory of how well you recite rules and rattle them off for a fact pattern and write under time pressure. People who have problems with handling time limits choke and lose out (there is also pure subjectivity in the grading- get the wrong essay grader on the wrong day and your life is ruined for another six months). And the essays are the least applicable to future practice, in my opinion.
Aaron, the law is too complicated and detailed for anyone to finish school and know enough about anything to take exams in a particular area. Different states may have special rules about how you advertise (in Texas, you have to qualify to call yourself a trial lawyer). The bar exam has to test general basics and how to reason.
Jun '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
I agree with John Yoo that there is little correlation between the person with the highest score on the bar exam and the best lawyer. There are a lot of other elements of lawyering that aren't tested by a bar exam, not the least of which is the talent to communicate with clients or to make common sense judgments.
That said, if a law school graduate in the United States lacks either the motivation or skill to pass what is, in most states, not the most difficult test in the world (especially when a bar review course helps you cram), then I have little sympathy for them.
And I couldn't agree more with heathermc. I'm one of those attorney who makes a living because people are willing to pay a healthy per hour rate (I'm in fly-over country, so I'm not at the $400 per hour level). My clients have every right to expect that I know "the damned law as written."
I don't recall a single client who wanted to test my "tartness" level.
May '10
Re: The Bar Exam Isn't Senseless, and Neither Is Law
This is not an original observation by me, but the most difficult part of Bar Exam for many (including me) is to deprogram one's cognitive habit to examine legal issues intensively, in order to retain a somewhat superficial understanding of a very broad range of subject matters. You must program yourself NOT to think too hard, while still maintaining the ability to delve into the subjects with sufficient depth so as to make certain intermediary connections, and to frame passably reasonable arguments in the essay portions.
One reason not to be too intimidated: almost everyone passes. In New York, if you exclude CUNY and Touro - and if you exclude repeat-takers and those coming in from foreign jurisdictions - the passage rate is over 90 percent. California, I hear, is harder. (Kathleen Sullivan failed in CA, yet I believe she's doing alright.)
Re: The Bar Exam Isn't Senseless, and Neither Is Law
Over at her blog, Ann Althouse weighs in, drawing over 100 comments. And at Volokh, Ilya Somin throws (half) his weight behind Wurtzel -- drawing a hundred more.
Edited on July 14, 2010 at 9:12pm