Paul L. Caron

Tuesday, July 23, 2019

How To Make Bar Exams Great Again: Require State Bar Officials To Take And Pass It Each Year

Ilya Somin (George Mason), How to Make Bar Exams Great Again:

MBEThis month, many of my former students will be going through the painful drudgery of studying for and taking the bar exam, as will many other recent law school graduates. Last year, my co-blogger  Orin Kerr, wrote a post recounting his experience the California bar exam at the age of 46. The whole thing is worth reading. But I wish to highlight this part:

I know it's crazy stressful now. But it will be over soon, and when it is over you can forget everything you just learned.

The reason why you can "forget everything" immediately after the exam is that very little of  the material on it actually needed to practice law. It's a massive memorization test that functions as a barrier to entry, not a genuine test of professional competence. That strengthens the case for my  view that the bar exam should simply be abolished. But if that isn't feasible, there is also my "modest proposal" for bar exam reform. I first wrote it up ten years ago. But I believe it remains just as relevant today:

My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn't required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

In this post, however, I want to suggest a more modest reform. Members of bar exam boards… and presidents and other high officials of state bar associations 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). And they should be barred from ever holding those positions again until—you guessed it—they take and pass the exam. ...

Today, I would amend the proposal by adding the requirement that bar leaders must take the exam at the same location and under the same conditions as ordinary test takers. That would create an incentive to end the situation where—in many states –  exams are only administered at one or two locations that are time-consuming and expensive for test-takers to get to.

The time has come to make bar exams great again—or at least less awful than they currently are!

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Posted by: Andrea Boyack | Jul 24, 2019 6:01:10 AM

The Tax Court could likewise help Congress' I.R.C. 7452 equal-opportunity representation provision work GREAT by calibrating the famously difficult nonattorney practitioner exam on the presumably excellent law clerk entering classes.

Posted by: Anand Desai | Jul 24, 2019 5:56:35 AM

An idea about practice from someone who appears not to have practiced a day in his life.
It's not worth the pixels necessary to explain why this is wrong.

Posted by: Anonymous | Jul 23, 2019 6:58:09 PM

I passed both the Virginia and Texas bar exams on the first try. Fresh out of law school. There is no way I could pass either one if I had to do it today.

Posted by: Jim Brock | Jul 23, 2019 4:18:48 PM

""I know it's crazy stressful now. But it will be over soon, and when it is over you can forget everything you just learned." The reason why you can "forget everything" immediately after the exam is that very little of the material on it actually needed to practice law."

Of course the same could be said about law school, but for some reason law professors don't hold the same attitude towards the holder of their sinecures as they do towards the bar exam. Let's get real: the reason EVERYONE dissuades new grads from hanging a shingle is because they don't know the first thing about practicing law, which is because... wait for it... law schools don't teach the first thing about practicing law.

Posted by: Unemployed Northeastern | Jul 23, 2019 9:32:38 AM