The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 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!