Tuesday, July 28, 2009

To those who are about to take the bar exam: We salute you!

Today is the first day of the bar exam for many states.  Tens of thousands aspiring lawyers will spend the next two or three days in examination hell, all for the chance to practice law in the jurisdiction of their choice. And statistically speaking, a significant minority of those exam takers will fail the exam and have to retake it.

The bar exam is the legal profession's greatest single rite of passage. Whether your view it as a necessary evil or a self-protective barrier to entry, there is no avoiding the bar exam (unless you live in Wisconsin). Reform efforts in this area have met enormous opposition, since the legal profession is extremely slow to change. But it has gotten better -- many states now offer the option to use computers for the essay portion of the bar exam. I would have gladly taken that option, especially when rigor mortis set in on my writing hand in the afternoon of the essay portion.

One of the best proposals I have seen this year was from George Mason Law prof Ilya Somin, who suggests that law examiners and other state bar officials should be required to take and pass the bar exam every year. Somin continues:

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.

That seems like an appropriate remedy to me, but it doesn't have a snowball's chance in hell of being implemented. Still, one can dream.

We here at Mormon Lawyers wish everyone taking the bar exam this week the best of luck. To those who are about to take the exam: we salute you!

Photo credit: Alex France.