The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A lot of recent law school graduates are going to be taking the bar exam in less than two weeks. I can relate. I took the bar exam just last summer, twenty years after I took it the first time. Here's what happened, together with some possible lessons about the experience.
I. Why Take the Bar Exam?
I'll start with the obvious question: Why? I took the exam because of a job change. I accepted a teaching job last June to start teaching at the University of Southern California in January 2018. You don't need to be a bar member to teach law. But I do occasional part-time legal work in addition to teaching. I wanted to keep that up when I moved to California, so I wanted to join the California bar.
But there was a complication: California rejects bar reciprocity with other states. I passed the New Jersey bar exam in 1997, after I graduated from law school. I later waived in to the District of Columbia. But California doesn't let out-of-state lawyers waive in. If you want to practice law in California, you have to take and pass the California bar exam.
One way out of taking the bar would have been to rely on the federal practice exception. Technically, state bars can't really regulate purely federal law practice in their states. If you're a member of the United States Supreme Court bar, for example, in theory you could go to any state and maintain a U.S. Supreme Court practice there without needing a state bar membership. But the federal practice exception is surprisngly murky in scope when you get down to the details. And I didn't want to rely on it given even just the theoretical risk that it might expose me to unauthorized practice of law claims. So I decided to sit for the California bar, which was coming up in less than two months after I signed up to join USC.
II. What's On The California Bar Exam?
The California Bar exam is known to be pretty difficult. Part of that is because it has a lot of topics. The topics include:
- Constitutional Law
- Contracts (Common Law and Uniform Commercial Code)
- Criminal Law
- Criminal Procedure
- Evidence (Federal)
- Evidence (California Evidence Code)
- Real Property
- Civil Procedure (Federal)
- Civil Procedure (California)
- Community Property (California law)
- Professional Responsibility (ABA Rules)
- Professional Responsibility (California Rules)
- Agency Law
- Partnership Law
California has in the past had a three-day bar exam, but that has recently changed: The exam is now two days. The sort-of good news is that I was able to take an additionally shortened exam, the Attorney's Exam, that California permits for lawyers who have been practicing elsewhere for a few years. The Attorney's Exam is just one (very long) day. It's the regular written essay exam minus the multiple choice Multistate Bar Exam. You show up for the first day and take the essays, and you don't have to take the second day that is the multiple choice part.
At first blush it seemed like a blessing to be able to take the Attorney's Exam. I didn't have to suffer through a second day of testing. And I was flying out to California to take the exam, so I could get back home to DC more quickly. Over time, though, I came to think the Attorney's Exam is actually harder to study for than the regular exam. The multiple choice Multistate Bar Exam only covers seven topics that are 1L and core subjects. Knowing that lets you focus your efforts; you know you'll be tested on those subjects. In contrast, the essay exam draws from all of the topics, and the only subject that always appears is something on Professional Responsibility. That meant you had to spread your efforts out widely, as you mostly had no idea which of the many topics might be tested.
III. How Did I Study?
I didn't need help with Criminal Law and Criminal Procedure. Constitutional Law wasn't going to be too hard for me, either, and I had taught federal Evidence Law a few years back and could dust that off pretty easily. But I had never studied a bunch of the topics on the bar exam. Subjects like Trusts, Partnership, Wills, California Community Property Law, California Civil Procedure, and California Evidence were all new to me. And although I had once studied 1L subjects like Property and Contracts, that was over twenty years ago. I didn't remember very much. I needed some bar prep help.
So I took Bar/Bri. Yup, just like old times. I had taken it in 1997, and I became a repeat customer last summer. Fortunately all the lectures were online through the Bar/Bri website, so I didn't have to show up in person and see my former students in bar prep class. I found myself watching Bar/Bri videos, sometimes taught by professors I knew or knew of, while filling in the big lecture notes books they give you. It was a strange experience.
I found Bar/Bri pretty effective in 1997. But I confess I found it underwhelming in 2017. Part of that may have been that I was a nontraditional student the second time around. For understandable reasons, they don't pitch bar prep classes to professors. Recent law grads usually have been exposed to most of the topics on the bar relatively recently; they often need mostly refreshers of stuff they have more or less seen within the last two years. Professors twenty years out are in a different place. We know an insane amount about a few topics, but next to nothing about others. So I needed to learn a bunch of subjects from scratch and to do it quickly.
I found the Bar/Bri materials an inefficient way to do that because the rules were presented without context. For me, at least, the fastest way to learn a new area of law is to first learn what the law is trying to do. Most fields of law are trying to achieve some goals or balance some interests in a way that you can state in a sentence or two. Once you know the goals of the law, you can understand the rules in that field as an effort to achieve the goals. It becomes a lot easier to learn the rules because they tend to fit the goals. My frustration with Bar/Bri is that the rules were not given any purpose. The rules were just rules, hundreds or thousands of rules to memorize, presented rule after rule after rule. It was something like memorizing Pi to a thousand places. It may have been a good fit for students who have recently taken classes in related subjects. But from my odd perspective, at least, it was frustrating.
IV: How Stressful Was It?
I was interested to see, when I signed up to take the bar, if it would be as stressful as it had been the first time. When I was a student, way back when, I didn't test lightly. I would go all out, being super-stressed for weeks. So I wondered if taking the bar exam a second time would be a lot easier and less intense twenty years later.
I wish I could say I was pretty chill about the whole thing. But nope, I wasn't. Yup, it was just as stressful in 2017 as it had been in 1997. I had more or less set aside about four weeks to study for the exam, and that meant about two days for each subject. I tried to spend roughly one day learning the basics of each subject, and then one day just memorizing the rules for that subject. But it was hard, and stressful, just as it had been right after law school.
Part of the problem was that intense memorization seemed so foreign. I wasn't worried about writing a nice lawyerly answer if I knew the rules. But studying meant trying to memorize a few hundred rules about random subjects I would never need. My middle-aged brain didn't take kindly to that. In my world, you pretty much never need to memorize anything. You can always consult your notes. Getting back into the memorization mindset after two decades off was harder than I expected.
Granted, I had the luxury that I didn't actually need to pass for my job. Most professors are not members of the state bars where they teach. So no worry if I failed, right? Well, yes and no. A lot of people were quick to remind me that former Stanford Law Dean Kathleen Sullivan had failed the California bar the first time. Many remembered that about her despite her brilliant academic and professional career. (I could see how it happened, too; if you don't spend enough time memorizing the silly rules you know you won't need IRL, you're unlikely to pass.) I could just imagine showing up at a new law school known among students only for an Above the Law headline, This Law Professor Can't Even Pass the Bar! So while I didn't need to pass the bar, I also kinda did.
V. Taking The Exam Itself
The actual process of taken exam was pretty similar to what it had been in 1997. The biggest difference was that in 1997, you either wrote your essays by hand (as I did) or you used a typewiter. By 2017, the standard was to use laptops, and that meant getting used to the ExamSoft software. As luck would have it, my laptop froze about 10 minutes into the exam. I was able to get back up and running without losing much time, though, and fortunately it didn't freeze up again.
The exam itself went fine. It was strange to be back in the position of legal exam taker instead of legal exam writer and legal exam grader. But I figured that was sort of an advantage, too. When I wasn't sure about a rule, I knew from experience how to write an answer that best obfuscated my lack of knowledge by burying it in a sea of otherwise-seemingly informed and intelligent words.
It didn't hurt that the last question, worth 25% of the exam grade, was a Fourth Amendment question. In the problem, you are a defense attorney and you are writing a letter to an AUSA about why he shouldn't bring a case in light of a Fourth Amendment violation you articulate your letter. They give you a fake Fourth Amendment opinion to rely on as precedent in your letter. I had to laugh when I saw the opinion, as I remembered reading the circuit court decision on which the fake opinion was loosely based.
VI. Reflections on the Experience
Happily, I passed. So the story has a happy ending. But we law professors like to make everything a learning experience, so here are some possible lessons I take from the experience.
(a) The California Bar Authorities Should Allow Reciprocity. It seems silly to not permit any reciprocity with lawyers who are practicing in other states. It would be fair to require experienced lawyers from other states to take a CLE course on a few specific areas of California law that may be particularly important. But not allowing any reciprocity with other states seems like pure protectionism. It's just trying to help California lawyers by making it hard for other lawyers to move here. I get that everything is overregulated in California. But it's still lame.
(b) There Are Too Many Topics on the California Bar Exam. I think the primary role of a bar exam is to require a certain amount of lawyerly competence. If that's right, I don't see why the bar exam requires learning so many topics. You just memorize some rules in case they show up, and then you forget all of them immediately after. I don't see the point in having so many different topics on the exam. It's not like you can test lawyerly competence among twenty topics any better than with ten topics. It just requires more time memorizing, and it's not obvious what that has to do with lawyerly ability.
(c) The Exam Should Be Better Run. The administration of the test on exam day left a lot to be desired. We were required to show up at 8am, but it took about two hours after that for the exam to actually start. There was only a 45-minute break for lunch, and then we had to come back to the exam room where we waited another hour or so to start the afternoon part. We didn't finish until 7pm. Maybe I'm just impatient in my old age, but I don't see why a 6.5 hour exam has to take 11 hours to administer.
(d) On Test Day, Don't Wear School-Related Clothing. The bar exam brings together people from all walks of life. Some people attended schools where the bar passage rates are very high, and others went to schools where it is not. Given the stress of exam day, don't wear clothing from your school, especially if you went to a school with a high bar-passage rate. It's just obnoxious.
(e) Yes, You Can Learn the Rule Against Perpetuities. My Property professor didn't cover it my 1L year, and I only learned a little bit of it when I took the exam after law school. But this time around I got into it, and I think I finally figured it out. It's a pretty interesting common law doctrine! Of course I have forgotten it now, see (b) supra, but at least there was a brief time when I understood it.
(f) Just Get It Done. Finally, a note to those reading who are taking the exam in less than two weeks. 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. It's just a strange rite of passage, and when the exam is over and you pass you never have to take it again. At least unless you move to California someday.