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.
Over at Conglomerate Blog, Christine Hurt notes that Wisconsin allows students from Marquette or U. Wisconsin to be admitted to the Bar without taking the exam. However, she writes in favor of a Bar Exam requirement:
I wish that Wisconsin had a bar exam requirement, although that wish may be because other states do. As Dan Solove pointed out, bar exams inhibit the movement of lawyers in and out of states. Being almost the only state that does not require a bar exam has the reverse effect of inefficiently retaining and attracting lawyers to Wisconsin. I think that the absence of a bar exam heavily weights in favor of our graduates staying in Wisconsin rather than venturing out and seeing the country. Of course, Wisconsin has a lot to offer a lawyer, but so do other places.
The absence of a bar exam also shifts the role of “barrier to entry” back to the law school, which is not an easy role for law schools to play these days in the competitive law school market. If either Marquette or Wisconsin took up the role of keeping 10% of all prospective attorneys out of the market, then we would find ourselves losing applicants.
This argument, like many others, is to praise the Bar Exam simply because it is a barrier. I strongly disagree with Christine about the Bar Exam serving as a better barrier than law schools. Some students spend three years of their lives and go into massive debt only to be stopped from practicing law by failing to pass the Bar Exam. This is not where the barrier should be, at the end of such a long and expensive commitment for students.
In a thoughtful post, Paul Horwitz writes: “[E]ven if for non-invidious reasons, entry barriers will — and likely should, if they are aimed at quality control rather than maintenance of guild privileges — remain. The bar exam does some things well, and can be a reasonable quality control.”
I query whether the Bar Exam does anything well. It is not a test of legal reasoning or skill; it is simply a test of whether one has remembered the rules.
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.
Originally posted at PrawfsBlawg
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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.
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