Bar the bar exam?

Abolish the bar exam or make it optional, writes Ilya Somin on The Volokh Conspiracy.  Let clients decide if they need a lawyer who’s passed the bar or just one who’s completed law school.

If the exam is required, don’t let the state bar association run it, Somin argues. Not unless his modest proposal is adopted:

(State bar officials and bar examiners) should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general).

Few could pass without cramming, he predicts.

. . . (bar exams) test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. This material isn’t on the exam because you can’t be a competent lawyer if you don’t know it. It’s there so as to make it more difficult to pass, thereby diminishing competition for current bar association members (the people whose representatives, not coincidentally, control the bar exam process in most states – either directly or through their lobbying efforts). Effectively, bar exams screen out potential lawyers who are bad at memorization or who don’t have the time and money to take a bar prep course or spend weeks on exam preparation.

My daughter will take the California bar exam tomorrow, Wednesday and Thursday. Fortunately, she’s good at memorization and the law firm that wants to hire her (but not till 2010) paid for a prep course. She’s been studying like a fiend for the last two months. She’s good at taking tests. She was graduated from a challenging law school (University of Chicago). So, she’ll probably do fine. Probably.

One section of the exam asks test takers to apply legal knowledge to a sample case. The rest has nothing to do with practicing law, she says. It’s about memorizing rules you’ll probably never need and can look up if you do.

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Comments

  1. toss255 says:

    Why the requirement that they have completed law school?

    I started teaching 18 years after getting my masters in Math. Had to take a bunch of junk education classes, some with excellent teachers, then I got certified.

    In fact, more interesting, how about passing their test, and not going to law school?

  2. California doesn’t require law school graduation (or classes) to take the bar exam. Most test takers who didn’t attend a certified law school don’t pass the bar, but some do. Some states do require law school graduation to take the bar.

  3. Good luck to your daughter! My daughter-in-law is sitting for the bar exam in VA starting tomorrow. She, too, has been studying for two months and has completed her bar review class just a week ago. Hope she’s ready!! We’ll be on pins and needles till the results are available in October.

  4. I took the California Bar and failed: after that, Florida was easy. Good luck to your daughter.

    “Some states do require law school graduation to take the bar.”

    All but California and Vermont. California also famously has dozens of law schools accredited only by the state bar and not the ABA: they actually primarily focus on what’s tested on the exam and for some reason the ABA frowns on that. Go to one of those schools and you’ll never be allowed to even take the exam in most states.

    Somin proposes some ideas, but almost none of them will probably ever be implemented. The profession has its parochial interest in arbitrary barriers to entry, and “if we did it, you have to as well.”

  5. dave.s. says:

    All primitive societies have initiation rites. For lawyers, this is it.

  6. A licensing exam for professions such as this is not a bad idea – while no test is perfect, it does offer some validity and consumer protection.

    I disagree with the law school requirement to take the exam, but I don’t oppose the exam itself. The same is true for CPAs. Anyone who can pass a rigorous exam like that should be allowed to practice.

    A degree, by contrast, seems to be less of a guarantee, especially in an era that has seen diploma mills such as the University of Phoenix.

  7. It used to be that you could “read for the law” in Virginia, under the supervision of a practicing attorney. I guess that’s changed.

    I went to a national law school, where they taught me (1) how to think like a lawyer and (2) the basic foundation of areas of the law. The bar exam review course taught me the specifics I needed to know to practice law in my state.

    I think they are both necessary.

  8. Both the classes and the bar exam are necessary.

    The bar exam weeds out certain students who may be able to pass their classes in law school (albeit barely) but shouldn’t really be allowed to practice law. At my top-25-but-not-UC-level school, that was maybe 10% of the class.

    Merely passing the bar exam isn’t and shouldn’t be enough to let you practice as an attorney any more than getting a good score on the GRE should allow you to skip college. The whole law school process is what prepares you for being a lawyer; although preparing for the bar will teach you some relevant law for the state in which you will practice. And will keep out some people who have no business being lawyers.

    Some states do still permit “reading law”. It’s not a simple process, though – in VT you have to intern for 4 years with a lawyer, for example…and it can limit your practice to whatever the lawyer with whom you are interning does. But it is available.

  9. It is scary to think that one can go to school and pass all classes and not be able to get a job because of a mandated test. Yet, most of us have to pass tests at the end of a long course of study. Some of us truly aren’t test takers. I am currently studying like mad to get another certification. The big test is in October. Lots of stress!

  10. I know some people who feel that one should be able to become a lawyer by taking the bar, even if you didn’t go to law school.