Occupational Licensing

How to Make Bar Exams Great Again

Bar exams should be abolished. But if that's not feasible, this modest proposal for exam reform should help restore them to their former glory!

|The Volokh Conspiracy |

This 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 taking 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.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it). That's because, as anyone who has taken a bar exam knows, they 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 proposed reform wouldn't fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

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!

 

NEXT: On the Eve of Oral Argument in Texas v. U.S.

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  1. I presume one thing the bar exam provides (especially because it isn’t about the actual law) is it ensures that becoming a lawyer represents a substantial investment of money and time (and isn’t just something one can pick up because you worked in a law office for 5 years). This might seem wasteful but one thing that gives the professional norms and rules force is the cost lawyers paid to practice and thus the huge investment of time and money they would forfeit should they be disbarred. I think there is a real and valid concern that people who are in need of a lawyer have limited ability to evaluate who is a trustworthy hire.

    I agree it’s a shame it’s so useless. I’d prefer we made the hurdle more akin to writing an academic paper on some aspect of the law but there is something to be said for arbitrary hurdles.


    Yes, accredited law school graduation serves much of the same purpose but in a number of states graduating from an accredited law school isn’t required. Yes, a period of apprenticeship is required but an exam provides the only real means of ensuring that this doesn’t become a low cost task, e.g., a statement saying you were apprenticed becomes partial payment for working for a lawyer in their office.

    1. “(and isn’t just something one can pick up because you worked in a law office for 5 years)”

      I think most people who know what they’re talking about would tell you that working in a law office for 5 years is BETTER preparation for practice of law than 3 years in school. A good, experienced paralegal is FAR more useful than a new associate is.

  2. In particular, what I worry about with your proposal is that practicing lawyers work in many different specialties and roles. It’s unlikely that one could create an exam which could be passed by all these working lawyers while still presenting a serious hurdle that requires substantial ability to overcome.

    I’m all for relaxing rules about who can provide legal services (so non-lawyers can as well) but there is some value to having a category of legal professionals who need to demonstrate substantial ability to reason abstractly about the law to enter the profession?

    1. “practicing lawyers work in many different specialties and roles.”

      I think the core complaint you’re recognizing is that many, if not most, practicing lawyers DON’T practice in many different specialties and roles. Your transactional lawyer who’s guiding your corporate merger likely hasn’t ever handled a criminal defense. The PI lawyer whose ad is running on TV right now hasn’t either. Whereas the public defender who has 70 active criminal defense cases hasn’t ever handled a corporate transaction or a PI case.
      The last time any of these lawyers was responsible for knowing all three areas of law was at bar exam time… when all three of them were responsible for knowing all three areas of law. Modern lawyers tend to “specialize” in only a subset of law (some states expressly deny lawyers the right to claim to be specialists in the area(s) of law they specialize in.) For some reason we still require lawyers to be able to handle legal matters of all kinds before they are allowed to handle any kind, resulting in a lot of wasted education, which in turn results in a higher cost to provide legal services than really needs to be, pricing many out of the market for legal services entirely.

      1. >many, if not most, practicing lawyers DON’T practice in many different specialties and roles.

        They are, however, licensed to practice in those areas. Given that, shouldn’t the bar exam prove minimum competency? I’d even go so far as to test key procedural rules e.g., how many days to you have to file an appeal, how many witnesses are required for a will, etc.

        Another weird thing is that attorneys are (only) licensed to practice in a particular state, but the bar exam doesn’t actually test that state’s laws. Instead, it tests based on the mythical law of ‘the majority of states.’

        1. I think part of it is to recognize what you don’t know. Never did any criminal work beyond my ow traffic tickets, but knew what to do when I got the 2 a.m. DUI calls. Never involved in any divorces except my own, but could keep friends and clients out of trouble before they could get to a divorce attorney.

          I thin of it as almost akin to being a first responder, whose job it is is to stabilize the patient so that they can be transported to real health care providers. Pretty much every physician I have ever met whether they were a psychiatrist, an allergist, etc knew the basics of stopping bleeding, starting breathing, and basically keeping people alive until they could be seen by people better trained in the required specialities. Some may go their entire careers without being called on for this, but for those who don’t, they have the skills just in case.

          1. The thing with your analogy is, a first responder (paramedic) doesn’t need to be licensed to practice medicine. The skills for the two jobs are quite different.

        2. “They are, however, licensed to practice in those areas.”

          Sure. Which is, in most cases, a huge waste of time, money, and effort.

  3. “It’s a massive memorization test that functions as a barrier to entry, not a genuine test of professional competence.”

    Barrier to entry?

    You mean the country with the largest lawyer per capita (US: 281 per 1M people, UK: 94 / 1M), needs MORE lawyers?

    1. “You mean the country with the largest lawyer per capita (US: 281 per 1M people, UK: 94 / 1M), needs MORE lawyers?”

      There are underserved portions of the population, so yes. The problem is that you need more lawyers who can and will work for $20/hr, but still be effective.

      1. Who in his right mind is going to go to law school so that he can practice law in some remote backwater where he will earn $20 an hour? There is no vow-of-poverty pledge required for lawyers.

        1. Very few people I suspect. But then again, there is a lot of legal work that can, and should, be done by non-lawyers paid at $20 an hour.

        2. “Who in his right mind is going to go to law school so that he can practice law in some remote backwater where he will earn $20 an hour?”

          Nobody. Which is why there are STILL people legally underserved in the nation with the highest per-capita proportion of lawyers in the population.
          Since the current system largely prevents even those noble souls who’d like to go work in the hinterlands for whatever those Americans can afford from doing so, because they have student loans to service, the question suggested is “what can we do to change the current system so the underserved can find lawyers both willing and able to handle their matters at a price point they can afford?

  4. If I were doing it, I’d build a system that’s more like medical residency. Obtain your education, pass a knowledge exam, obtain a residency, practice for a year under the guidance of practicing lawyers, obtain a license to practice. There’s lots of possible tweaks here, such as making a law degree back into a baccalaureate program rather than a graduate one. I wonder if the law schools would fight me on that one?

    Then again, I’d also build a system of LIMITED licenses, which would allow practice in a specific field, and only offer GENERAL law licenses to people who completed a residency and practiced under a limited license for some period of time. So, you’d have a lot of people with limited licenses practicing, say, business law or personal injury law. They’d only have training in that one area of law, and only handle that kind of cases, but it would be less expensive to become qualified to practice. However, I think this licensing system would more closely match the way lawyers practice in the real world, anyway. Instead of training them to handle any kind of case except patent procurement and then having most of them specialize in the area of law that actually interests them, let them specialize in the area of law that actually interests them and not waste the time and effort learning all those other areas of law.

    1. Sounds good. At least this way liberals wouldn’t be able to pretend to know Conlaw.

      1. Neither would you. Then again, that isn’t stopping you now.

    2. I think you would do better modeling it on the Professional Engineer licensing. Medical Residency is far more structured than is healthy.

      1. I don’t think much of PE licensing.

  5. As a big law client, I slightly disagree.

    The equity partners I work with have to put in tremendous hours each week. I see them working so many hours I have sometimes insisted they not work on my thing at all this week, and take those hours they would be using on me and go do something other than work.

    The associates are (obviously) expected to shoulder a large load and work many hours. And in my time as a big low client, a surprising number of smart and talented associates have quit law – not just the firm – and looked for a different life that is better for them.

    The bar exam prep is just one of the time consuming periods of drudgery that a young big law attorneys is going to have to get through on the road to success, and it’s only one of many.

    I get that this is kind of cruel, and in many ways big law sucks for the attorneys, but as a client I need you to have proven time and time again that you’re willing and able to work through the drudgery and put in the hours. Because when I really count on the equity partners to do the work and do it world class. That’s why you’ve earned, and I pay, your four figure hourly rate.

    1. I’m not a lawyer. But I passed a bar exam, without “putting in the hours” or “working through the drudgery”.

      You’re willing to accept the work of the associates at your biglaw firm because that firm hires people who can and do work through the drudgery of nailing down every loose piece of your mega-transaction(s), AND their work is supervised by experienced attorneys you trust (and pay for). You accept the work of the partners at your biglaw firm because they can, and have, produced for you before. Note that neither case has much to do with how they became licensed to practice law.

    2. I’m sorry, but your company’s mismanagement of personnel is not the only way to be a lawyer. In fact, it’s unhealthy and abusive.

      Secondly, the fact that such abuse of employees is routine does not make it the business of the state to copy that in the form of a test. That logic is absurd.

      Many lawyers have a healthy work-life balance without getting into absurd grinds like you describe.

      1. People choose biglaw, because they want the big paycheck. The fact that they GET the big paycheck because they’re working two jobs that happen to be the same…

  6. Suck it, put in the hours, and pass the bar. Otherwise, go flip burgers.

    1. Why?

      More specifically, what benefit do I get as a customer from this anti-competitive rite of passage? As noted above, having passing the bar sometime in the past provides little to no evidence that you are skilled or even minimally competent at the thing I need you to do right now.

  7. As someone who took and passed the bar exam four times (NY, NJ, CA and OR), I can say that the central problem with this suggestion, which would be funny initially, is that the bar exam gets easier each time you take it.

    Each cycle of studying builds on the memories of the last, and each administration allows one to reduce the stress and deal with the time pressures that make it harder the time before. You really can get quite good at doing it, especially the MBE, which tests a lot of the same things each time on only six topics (seven now, I hear).

    If the bar exam board members were required to take the bar every year, they would get better at taking it every year. I think they would ultimately begin to make the test harder as it became easier for them.

    1. Glad someone else noticed this. As they continue to take the test, they’d get better and better at memorizing it. Soon they’d start to think that everyone should be able to do it too.

      If you really wanted to fix the situation, you’d select a random number of lawyers to take a bar exam in any given year. The percentage would have to be small enough such that most lawyers wouldn’t bother studying. But then, if you fail, you are immediately suspended from the practice of law for at least six months (when the exam is re-administered). During that time, you’d be prohibited from working for a firm.

      After a couple rainmakers get bounced, you’d immediately get pressure from the firms to make the exam easier, more convenient, more frequent, and limited to areas of practice. Or abolished altogether.

    2. This brings up a different issue. Right now, there’s two possibilities if you want to become licensed in a new state. Either 1) there’s reciprocity so you don’t have to do anything, or 2) there’s no reciprocity so you have to start over from scratch (maybe there’s a tiny benefit… do you have to take the MPRE again if you’re already licensed somewhere?)

      What you need is an exam that tests things that are specific to the state. Maybe a couple of hours’ worth rather than the three days a new JD has (one for the MPRE, and 2 for the bar exam proper.)

      1. There is no value added for an exam testing things specific to the state for switching states. Again, requiring the memorization of a few state-specific issues does not do anything to screen for competence. If someone has practiced for a number of years in another state, forcing them to jump through hoops is nothing but protectionism. (That’s not to say that one couldn’t screen for competence in practicing law in a new state. But it would require something very different from a two- or three-hour exam.)

        1. “There is no value added for an exam testing things specific to the state for switching states.”

          I’m sure that in your case this is true. There’s also nothing value-added by requiring out-of-state practitioners to retain local counsel…

          Why would you want a lawyer who knows the local law is, and the local rules of court? They can just look it up on Wikipedia.

          1. Why would you want a lawyer who knows the local law is, and the local rules of court? They can just look it up on Wikipedia.

            Dunning-Kruger at work here, I see. A brief (several hour, as you suggested) exam is neither broad enough nor deep enough to ensure a lawyer “knows the local law.” Like the regular bar exam except even more so, it would ensure that one knows a very little bit about a very little bit. Not enough to competently practice any area, let alone all the areas one is allowed to practice in as soon as one is licensed.

            And, yeah, local rules of court one really does just look up. (Note that in some jurisdictions, those rules are uniform statewide; in others, they vary from county or district to county or district.) (More important than knowing the rules is knowing the clerks, btw.)

            1. “Dunning-Kruger at work here, I see. ”

              I agree. You don’t know what you’re talking about, and don’t know that you don’t know what you’re talking about… but feel qualified to lecture others on the subject.

              Please… tell me more about the subject that I know far more about than you do.

              1. We’d have to find a topic you know something about, first.

                1. Based on your substitution of bravado and bullshit for actual knowledge, I suggest you run for President.

  8. As an initial matter, I think the idea of law school is that you’re not seeing something for the first time when you take the bar (or preparing to take the bar). Of course, this isn’t always true; some law school students focus on certain areas of the law to the exclusion of others. Even then, however, learning about other areas of law in which you don’t intend to practice (and, therefore, knoweldge is not retained in the same sense as those areas in which one does end up practicing) at least puts in your head for years later that vague recollection that there’s something out there that you should be cognizant of when a certain situation arises, which should cause you to either research that area or seek advice from someone who does practice in that area. Of course, the author’s primary complaint is with California, to which, I would simply respond, res ipsa.

    1. So, after spending 3 or 4 years learning all the stuff that’s on the exam, many would-be lawyers shell out another couple of thousand for a class that teaches them how to pass the bar exam.

      1. And, incidentally, when I was studying for my exam, my now-wife casually looked over my exam materials and could answer a pretty solid percentage of the MBE questions. And that’s just from flipping through an outline book or hearing me talk about it.

        Are you really saying I spent 3 years and $100,000 in loans so I would know what was going to be on the test?

        1. There’s also all the contacts you made. At least you learned how to take a test. MBA students don’t even get THAT.

  9. I am interested in what Somin would think of driving over bridges designed, reviewed, and certified by non-licensed engineers. If you want a State license, you pass the exam.
    In that regard, physicians first board certified after 2008 must now take a 2 test 10 years later if they wish to remain board certified.

    1. Was the Brooklyn Bridge was designed, reviewed, and certified by licensed engineers?

      1. The bridge was designed by John A. Roebling who studied Architecture and Engineering in Germany. He also developed the techniques to constructed may of his projects. He died before the work was really started.

        1. That’s an interesting bit of trivia. If course, you still never answered the question.

    2. If the process for becoming a licensed structural engineer were as unrelated to the practice of structural engineering as the process of becoming a licensed lawyer is to the practice of law, I’m sure he wouldn’t mind. It’s not. The engineering equivalent to the bar exam is the EIT, the Engineer in Training, taken at the end of your engineering studies. You then have to spend time, usually around five years, actually demonstrating professional competence in the real world (not Barexamistan) before getting your license.

      But I suspect he wouldn’t mind either way. Buildings and bridges were built for thousands of years by unlicensed people. The greater safety now is based on an increase in knowledge, not an increase in licensing.

    3. We somehow got by for a couple of centuries with bridges designed and built by people who never took an exam to be licensed as an engineer. Used to be, you could work as an engineer if you could do the work, with or without a fancy university degree.

      1. that was before tens of thousands of heavy vehicles drove over them every day and they were often shorter and less high.

        1. Your theory is that automobiles are heavier than locomotives?

          Say, wasn’t the famous Tacoma Narrows bridge designed by professional engineers?

  10. One thing I like about the Bar is that affirmative action admits tend to fail. It’s a good way to demonstrate how bad race-based AA is.

  11. I like the modest proposal, at least as a thought exercise. I’m in a jurisdiction (Province of Ontario, Canada) that has open-book multiple-choice bar exams (don’t laugh, even the USPTO patent agent/attorney exam is multiple-choice and you have a searchable electronic copy of the MPEP to use…) But, I’m also called in New York having written the bar exam there years ago, so I’ve had that enjoyable experience also…
    I’m also a volunteer tutor for those who’ve failed the bar exam, and I know from practice test questions I could easily pass the bar exam even in areas I don’t practice in. So shouldn’t every lawyer, every X years, have to pass at least a multiple-choice exam to ensure they’re still competent? If they fail in any subject areas, agree to practice restrictions (no work in areas they failed) until they pass?

    1. So shouldn’t every lawyer, every X years, have to pass at least a multiple-choice exam to ensure they’re still competent?

      The bar exam does not ensure that passers are competent. It ensures that takers have some random elements memorized.

      1. That’s true of the MBE. But you’d better be able to explain why an answer is correct in the essays and the simulation section.

  12. Compassion requires that if you sneak across the US border, you automatically pass the Bar Exam and are automatically granted all privileges that go with it.

    All illegal border crossers must also be allowed an opportunity to occupy Law Professor jobs and be paid Law Professor salaries. Existing Law Professors must learn to share.

    Anyone who disagrees is presumably hateful and compassionless and presumably wants children to suffer.

    1. Your brilliant comment raises further issues: everything is a barrier to entry. Need a decent suit? Bar fees? Access to Westlaw/Lexis? Requirement of maintaining an office for receipt of service? CLE? Blow it all up!

      1. You sound like you’re being sarcastic, but pretty much, yeah.

        (CLE, of course, is a complete scam.)

  13. Although I have taken four different bar exams in as many jurisdictions, I practice in a diploma privilege state. That is, graduate from a law school in this state and you do not have to take a bar exam. The fact that a bar exam is nothing more than a barrier to entry could not be more clear!

  14. Better approach:

    1) Don’t limit to these officials. Instead, require every lawyer pass the bar every five years to retain his license. After all, if someone can’t pass a genuine test of necessary professional knowledge, it shouldn’t matter that they used to have it.

    2) Make the bar exam the only barrier to a license. After all, if someone passes a genuine test of necessary professional knowledge, it shouldn’t matter how they acquired their knowledge. Going to law schools not accredited by the ABA, years working as a paralegal, just sitting down in a library and reading, whatever.

    1. That’s how IT certification works (with a few exceptions). The problem there is the same… you get people who learn just enough to pass the exam and retain it just long enough to pass the exam, who then get the job and can’t do much of anything. As a result, a lot of places don’t place much faith in certification, and they ALSO hire a lot of people who can’t do much of anything.

  15. Where I went to law school one of the senior faculty, the building was named for him, suggested the exam as prepared by the state bar was their way of telling the faculty what they thought mattered most. HIs observation was that most of the students he thought showed promise did pass the test. Students he thought didn’t show promise were counseled out. That is a diploma privilege wouldn’t change the outcome for the students he taught much. At least the administration looked at the exam in preparing the curriculum. Maybe the test was prepared as a barrier to entry. The pass rate could have been reduced by emphasizing things like the miner’s inch or when does it take an adjudicated water right to fill a hot tub on an outside deck?

  16. The title suggests the bar exam was once “great” – it never was and there is no glory to restore. It’s always been exactly what the author says, for the most part a purposefully arcane and difficult barrier to the profession – at least the non MBE portion. Not that I would ever equivocate law practice with the practice of medicine in terms of technical difficulty, but an apprenticeship approach similar to a residency (but obviously shorter — maybe 18 months?) is a possibly viable alternative.

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