Bar exams in the news

December 8, 2005

The Wall St. Journal reports: Raising the Bar: Even Top Lawyers Fail California Exam:

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan.

California has no reciprocity with other states, so all lawyers who move to California are required to take the bar exam. Admitted attorneys have the option to take a 2 day version of the exam that omits the MBE.

The two-day test, which is identical to the longer exam but omits a long multiple-choice section, had just a 28% passage rate in July, an astoundingly low figure that state bar officials are at a loss to explain. Out-of-state lawyers can take the full three-day exam if they choose.

The bar exam tests how well one has prepared for the bar exam, not how good of a lawyer one may be. Passing the exam requires knowing the test and not just the law.

At Concurring Opinions (my favorite new blog of recent launch), Daniel Solove discusses further: Abolish the Bar:

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.

Practicing attorneys who are working are less likely to have lots of free time to study and it shouldn't be surprising that they pass at a lower rate than fresh graduates who are taking the entire summer off to study.

Those graduates who are taking the summer to study are almost all taking the Bar/Bri review course. THe NY Times reports on an anti-trust lawsuit filed against Bar/Bri: Are Lawyers Being Overbilled for Their Test Preparation?

But now BAR/BRI could use a few lawyers itself. Some of the people who paid the fees, took the courses and passed the bar have turned on the company, which is owned by the Thomson Corporation of Stamford, Conn. Represented by an aggressive Los Angeles lawyer named Eliot G. Disner, they have filed a lawsuit charging that the company that helped them to become lawyers has operated an illegal monopoly and has overcharged hundreds of thousands of students by an average of $1,000 each - or, collectively, by hundreds of millions of dollars.

The choice quote from the article is: "Bar review is a very profitable business." Especially when you need to host only a single lecture with most of students watch recorded lectures on video.