Over on the Volokh Conspiracy, Prof. Ilya Somin has a good post today on whether the bar exam ought to be abolished. He agrees with Elizabeth Wurtzel that the exam “is primarily a test of memorization,” the bulk of which will be irrelevant to any given lawyer’s actual practice. We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams.
Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer. It doesn’t test judgment, reasoning or understanding. More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.
We remember Prof. Whitebread’s lecture from our Bar/Bri course back in ’97, where he admonished us not to seek a perfect score on the bar exam. “You only need a passing grade,” he said. “You don’t need to get them all right; you only need… a gracious plenty.” And he was right. The bar is not all that high. As a barrier to entry, the bar exam doesn’t really do a whole lot.
Prof. Somin would abolish the bar exam, he says, because it keeps out too many lawyers. “The high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many.” He is wrong. The bar exam hardly keeps anybody out. The profession does not have too few lawyers; it has too few good lawyers.
We usually argue the point from the other angle, when it comes up in conversation. “It’s not that there are too many lawyers,” we say, “but that there are too many bad ones.” And it’s true. The profession has a glut of licensed practicing lawyers who are not terribly good at what they do. We encounter them on a daily basis. They’re out there, they’re all over the place, and they make the rest of us look bad.
All they had to do was stick out a few years of some law school and get a barely passing grade, then memorize some of this and some of that and barely pass the bar. For the rest of their careers, these lawyers will never again have to demonstrate any actual competence in anything in order to remain licensed practicing lawyers.
This is where the bar exam needs to change. We should definitely abolish the one we’ve got. It’s just a holdover from the bad old days when the bar was a gentlemen’s club with rules designed to keep out the working classes and undesirable races. (The ABA accreditation rules for law schools, which Prof. Somin would also abolish, were mostly there to keep the profession largely free of black people and anyone who needed to work for a living. Those rules haven’t changed much since the bad old days, either.) The bar exam is truly nothing more than a rite of passage, a bit of hazing that we all had to go through so you’re going to have to do it, too. It’s not about ability or competence, it’s just this thing we do. Nothing more.
Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine. You want to practice criminal law? Someone’s life and liberty is going to be on the line. You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom. Or you say you want to be a transactional lawyer? People’s assets and livelihoods will be at stake. You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.
And such bar certification would need to be renewed. Just because you knew what you were doing 20 years ago is no indication that you’re any good at it now. The law changes. Procedures change. It changes slowly, and by degrees, so it’s easy to miss things, and it’s easy to become out of touch in a surprisingly brief period of time. We personally know far too many lawyers who don’t really keep up like they should. (And don’t bother mentioning CLE classes. If you think CLE ensures that lawyers keep abreast of things, then you haven’t been paying attention.)
We sincerely disagree with Prof. Somin. The bar needs to create barriers to entry into the profession. The stakes are too high. That’s why we’re a profession, and not a business. Clients entrust us with their property, their families, their liberty and their lives. We need to make sure that the members of our profession are up to the task. Weed out the incompetent.
We’re not doing that now. We’ve never really done that. Is it any wonder there are lawyer jokes and a general disfavor of lawyers as a breed, while at the same time individual good lawyers earn substantial respect? We guarantee that if the profession required us to periodically prove our competence, it could only be good. The supply of lawyers would not really go down — the law schools keep supplying us with thousands of new ones every year — and they’d be the good ones.
The legal profession is a cartel. Unlike medicine or anything else you can imagine, we have absolute control over entry into our ranks, the rules by which we operate, and even the laws that would apply to us and their enforcement. We can literally do anything we want.
So why not do it the right way? Replacing the bar exam with bar certification would only be good for the profession. You’d think we’d have figured that out by now.