The recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit sensationalistic for the WSJ, as its main purpose seemed to be to mock Kathleen Sullivan. I was interviewed by the reporter of the story a few days ago because of my blog posts earlier this year (here, here, and here) arguing that Bar Exam should be abolished.
The reporter emailed me and wrote: “I’m a reporter with the Wall Street Journal. I’m researching arguments in favor and against the abolition of bar exams, and wondered if you might have time to share your thoughts on this matter with me today.” I spoke to him about my arguments, but he asked a few times if I could name any prominent professors or lawyers who failed. I told him I didn’t know of any and that even if I did, I would consider revealing this fact to be a bit tawdry, as failing the Bar Exam is considered an embarrassing fact. I didn’t see why it would be necessary to bring embarrassment upon a person for a story about the abolition of the Bar Exam.
I was quite surprised when I read the story, a bit peeved at not being quoted, and somewhat annoyed that the story seemed to be primarily cast as a way to showcase Sullivan’s failure rather than address the problems of the Bar Exam. The reporter did not mention Sullivan at all in my interview.
So since they didn’t make it into the story, I want to reprise my arguments against the Bar Exam. As I wrote in a post called “Bar None”:
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, it’s 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. . . .
[The Bar Exam] 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 also provided a quick roundup of my arguments against 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, it’s 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 doesn’t 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.
One big problem with the Bar is that it functions so as to make it very onerous for lawyers to move to a different state. Thus, Sullivan is already licensed to practice in New York and Massachusetts. She has already passed the Bar. But she many years later because she wants to practice in California she now must pass an exam filled with a bunch of irrelevant questions. In fact, the longer one practices and the better one knows the law, the worse one will do on the Bar Exam. That’s because the Bar Exam bears so little relationship to law practice, and as they tell you in BarBri class, thinking on the Bar Exam will hurt you, not help you. Sullivan’s problem was that she didn’t waste enough hours memorizing the often obsolete and reductive rules for the Bar Exam. Indeed, any practicing lawyer or law professor who doesn’t have a lot of time on her hands to waste would encounter a similar problem. She probably thought she knew the law and had a ton of legal experience — but this would hurt her in the exam, not help her.
Maybe some good will come out of this and the Bar Exam will be seriously rethought. Sadly, however, the WSJ article seems more intent on focusing on Sullivan than on addressing the problems with the Bar Exam.
Originally posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.