August
10, 2005 12:22 AM
(Daniel J. Solove is an Associate
Professor of Law at George Washington University Law School and blogs at PrawfsBlawg and Balkinization.)
Earlier
this summer, I posted on PrawfsBlawg my thoughts on abolishing the Bar Exam.
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.
Here's
what I initially
wrote:
Abolish
the Bar Exam. Despite my enjoyment of the Bar Exam as a work of
jurisprudence, I believe that the Bar Exam should be abolished. It
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
received quite a response. I was surprised that many stood up to defend the Bar
Exam, which definitely demonstrates lawyers will defend absolutely anybody or
anything, no matter how dangerous or odious.
Replying
to these comments, I wrote another post explaining my position in more detail.
Further
Thoughts on Abolishing the Bar Exam. 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. [...]
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.
Here's a
brief listing of some of my arguments for abolishing 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.