What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart’s The Concept of Law? Ronald Dworkin’s Law’s Empire? No . . . it’s actually the Multistate Bar Exam.
Almost all lawyers have read it. Although the precise text is different every year, the Bar exam presents a jurisprudence that transcends the specific language of its text. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. It therefore comes as a great surprise that the Bar exam has received such scant scholarly attention.
No work on law has perhaps been so widely read by those in the legal system. And not only is the Bar read, but people study it for months, devoting more time to it than practically any other jurisprudential text. It is unbelievable that such a widely read and studied text has barely been discussed in the academy. In fact, legal scholars readily dismiss the Bar exam. Despite the fact that the Bar exam purports to present the valid law in the United States, scholars don’t cite to it as legal authority. Nor do judges. The Bar exam gets little mention in treatises either.
It’s about time to rectify this situation and put the Bar exam in its place as the great work of jurisprudence that it is.
Beyond merely presenting rules of law, the Bar exam presents a full-fledged theory of law. But what is its theory of law?
I got my hands on the 1998 July Multistate Bar Exam, which is made available to Bar Exam takers as a sample practice test. To truly understand the Bar, one must read through all its physical manifestations, but reading through more than one Bar exam was more than this author could bear, notwithstanding the great insights that it would have clearly produced. I therefore leave further work on other Bar exams for future scholars in this young yet hopefully growing new field of study.
The first thing to note is that this Multistate Exam comes on beautiful thick acid-free paper designed for indelibility. This, I believe, is a testament to the authors’ (who remain anonymous) intent that the Exam be kept for years as a treasured centerpiece of any legal scholarly collection.
I am also struck by how the Bar exam is a Protean work of jurisprudence. It takes many different forms, and changes each year, but I believe its overarching teachings are the same. Although it changes its form twice each year, it is still referred to singularly as the Multistate Bar Exam. It is therefore, paradoxically, both one and many. Few if any other works of jurisprudence come in such a pluralistic form.
On to more conventional jurisprudential observations. The Bar exam draws heavily from Ronald Dworkin, who argues that there are indeed answers to even the thorniest legal issues. Departing from H.L.A. Hart’s open texture of law, where there are pockets of uncertainty, for Dworkin, there is an answer to all legal questions. And so, too, on the Bar. Every question has an answer.
The Bar states that one is to choose the best answer, and thus it does at least recognize that right-versus-wrong is too simplistic a way to understand the law. But what does “best answer” mean? The exam states that all questions should be answered “according to the generally accepted view, except where otherwise noted.” We’re back to Hart again, with a kind of rule-of-recognition for the rules on the Bar: The best answer is the generally accepted view. But among whom? Lawyers? Judges? Academics? The public? The Bar doesn’t tell us.
The Bar draws heavily from legal realism as well as from more recent movements such as law and narrative. The Bar instructs us about how rules affect people on the ground. We learn the plight of those subjected to the law and how the law affects them. The Bar exam presents itself as 200 stories about the law. This is not a top-down theory of the law, but a bottom-up illustration of the way the law works in practice in the lives of individuals. As Karl Llewllyn observed: “We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, the present vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all.”
Despite its commitment to the concrete, the Bar diverges from legal realism in its view of the relationship between fact and law. In a sharp departure from realist ideas, the law on the Bar is self-executing. Consider question 101, which discusses how Dirk forcefully enters John and Marsha’s apartment, binds and gags John, and steals a diamond necklace from a safe. John, in an attempt to unbind himself, suffers a heart attack and dies. The question then asks:
Dirk is guilty of:
(A) burglary, robbery, and murder.
(B) robbery and murder only.
(C) burglary and robbery only.
(D) robbery only.
The exam answer key says that the correct answer is A. But where’s the jury in all this? How can Dirk be guilty without a jury trial? Are these facts correct? Here, Dirk is tried-and-convicted without a jury! What about Dirk’s constitutional rights?
This attitude toward facts and juries pervades throughout the Bar. Tort question 192 asks: “If Actor sues Vineyard to recover damages as a result of Vineyard’s use of the photograph, will Actor prevail?” How can one really say for sure? So much for the judges and juries that must apply the law – they are viewed as irrelevant by the Bar. The Bar tells us that the human element – the discretion of prosecutors, lawyers, judges, and juries – is immaterial to the law.
But yet, one should avoid hastily concluding that the Bar’s vision of the law is not humanistic. The Bar’s vision of the law is far more complex. The Bar is, in fact, a very humanistic document. We hear the harrowing stories of great loss and terrible wrongdoing. We witness horrible crimes, bungled contracts, corporate malfeasance, and wretched accidents. Each story involves people who have real lives, who suffer or rejoice. Unlike abstract theories of jurisprudence, the Bar focuses on how the law affects particular people. It is remarkable in its humanism.
When one examines the substance of these stories, the Bar paints for us a powerful and telling picture of the legal system. One notable dimension of the Bar’s depiction of the law is that many really good people get screwed in the system. There are hurt little-old-ladies who don’t get to collect tort damages. Dastardly criminals go free because their burglaries occurred during the daytime rather than at night. (Indeed, the requirement that burglaries must take place at night is based on archaic common law definitions of crimes, which although having long been supplanted with statutory law, remain alive-and-well on the Bar. Ironically, if one practiced the criminal law on the Bar exam, one might be disbarred.)
Why do so many good people lose in the legal system? Why is there such grave injustice in this jurisprudential vision of the law? Here, the Bar is teaching us the legal positivist notion that law is separate from morality. Despite rejecting Hart’s open texture of the law in favor of Dworkin, the Bar eagerly embraces Hart’s strict separation between law and morality.
In the end, the Bar doesn’t proffer a theory about how the law makes sense or why it is just or unjust or even how to make it coherent. Instead, the Bar simply says that the law is. This is a stark, almost existential view. The Bar seems to be saying: “Here’s the law. It helps some people. It screws other people. And that’s it. There’s nothing else to say.” What about whether the rules are just? Whether or not they should be changed? These questions don’t matter.
Thus, the Bar is a complex and rich theory of law, one that requires further study. I have only begun to scratch the surface of this great jurisprudential work. And since it will continue to evolve, twice each year – once in February and once in July – it is continually being updated. It’s a work of jurisprudence that just keeps on giving. All of us should be very thankful indeed for the great efforts of the anonymous legal philosophers who continue to toil on this evolving jurisprudential masterpiece.
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.