Straw arguments are notoriously bad at fending off a good rhetorical beating, which is why it’s so weird to see one hold up so well to scrutiny.
To be fair, GW’s Professor Roger Schechter makes some good points in his recent Bloomberg Law article “Let’s Not Toss Out the Bar Exam Just Yet.” So I guess I’m saying “let’s not toss out this article just yet.” But still, the article contextualizes itself around a flawed premise. It’s a good primer on why the immediate abolition of the bar exam followed by no further licensing reform would be a bad policy.
But no one is really saying that.
Bypassing the broader reform proposals floating around, the polemic grounds itself in the idea that reform is myopically tied to bar exam abolition, Professor Schechter inadvertently makes a compelling argument for comprehensive licensing reform. And, yes, a model that would eliminate the bar exam as we know it.
But before we get to his two main points, let’s just take a second to soak this in:
Moreover, the legal rules tested on the bar exam are not obscure or arcane points of law. Rather they reflect core information with which every lawyer should be familiar, just as every doctor should be familiar with basic anatomy and every accountant should be able to read a balance sheet.
In over a decade of private practice, I never once needed to deploy the Rule Against Perpetuities. Nor did commercial paper come up. Holographic wills were both less badass as the name implied and wholly irrelevant to my day-to-day practice. The bar exam may not test “obscure or arcane points of law” for all applicants, but it certainly tests obscure or arcane points of law for specific applicants. If you wanted to put the lie to this comparison to doctors being “familiar with basic anatomy” go ahead and require every 20-year ERISA partner to pass a test on Family Law every year. See how that flies.
Putting aside the nonsense of this premise taken to its extreme, there is an interesting point about the exam filling in educational gaps:
Of course it takes effort to prepare for the exam. It was recently argued in an Insight that the bar exam is “fundamentally unfair” to newly minted J.D.’s who must “put their life on hold” while studying for the bar exam. That complaint, however, assumes the very issue under discussion, namely that the bar exam serves no useful purpose.
For many, the seven or eight weeks of bar study fills crucial gaps in their legal knowledge, gaps that often exist because self-indulgent faculty members have failed to cover basic principles in favor of more arcane theory. One could just as easily say that law students must “put their life on hold” while going to law school.
Well, one could “just as easily” say that if one assumed that BARBRI conveys the full spectrum of necessary legal knowledge over the course of a summer, which raises the entirely separate question of whether we should be going back to the roots of the bar exam and not require law school at all. Make everyone be a Kardashian! That seems like a bad idea to me, but it gets to the crux of the broken belt and suspenders approach of the status quo: the bar exam was designed for a world without professionalized law schools. Have a bar exam model or a law school model — why both? Oh… because the ABA specifically wanted to keep out minorities.
Also, that’s the second “arcane” of this article. Someone’s using their D&D thesaurus.
Bar examiners will be quick to say the exam doesn’t test legal knowledge but methods of legal analysis. In fact, NCBE personnel recently wrote an article about bias where they assert explicitly that their exam is not based on legal knowledge:
To ensure that successful performance is not confounded by an examinee’s knowledge of substantive law, examinees are provided with a case file and library that include all substantive information necessary to complete the assessment task.
In any event, if the exam is teaching legal concepts (NCBE says it’s not) that are necessary to any practice (the lived experience of attorneys says it’s not), this is an argument for law school accreditation reform, not an argument to keep licensing tied to an exam of dubious value when it comes to conveying legal knowledge. Crack down on law school performance, issue new curriculum mandates, have a serious conversation about limited practice area certification — these are all ideas reform advocates have floated and argue about amongst themselves. That’s the conversation, not “eliminate the bar exam and throw up our hands.”
Even though law school reform would seem the logical response to this issue, it seems he has a different axe to grind when it comes to legal education:
Nationally, in each of the past several years, about one in five J.D. grads has failed the bar exam on their first try, and about 12% of test-takers cannot get past the exam even after multiple attempts. These students make it through law school with, in my opinion, a great deal of faculty and administrative hand-holding, judicious course selection, and a boost from grade inflation.
First of all, that’s not how bar exams are graded. But more importantly, he presents this as though poor bar performances are equally distributed across law schools and it’s just those hippie law professors helping ill-prepared students get through. In reality, the bulk of poor performances come from the usual suspects of lowly ranked law schools. Schools where the phrase “diploma mill” is harsh but not entirely inaccurate. That’s not a matter of outlier faculty, but a philosophical decision by questionable actors in legal education.
Right now, with state licensing agencies farming out accrediting work to the ABA we have an agency largely incapable of holding schools accountable lest right-wing lawyers sue the organization for demanding higher standards. If attorney licensing were more directly tied to law school accreditation we could put some teeth into this process and massively curtail the number of applicants who don’t meet the vaguely defined “minimum competency” for practice.
And this is where the whole argument goes off the rails:
Just as important as its role in screening out the unqualified, the bar exam is a necessary constraint on the worst impulses of law schools. Law schools are usually tuition dependent and there is a constant focus on the bottom line. Surely some schools would be tempted to admit even more woefully unprepared students to harvest additional tuition in a world where they did not have to worry about bar exam pass rates.
Law schools are admitting woefully unprepared students to harvest additional tradition right now. The bar exam isn’t a check on this practice, it’s the green light for it. Law schools happily throw students $200K into debt and then wash their hands as they dump their graduates off on bar review professionals. Note that while bar prep companies might offer refunds for failing the exam, law schools certainly don’t. We have law schools out there that have been allowed to operate for years with roughly half of all grads failing the exam. When they get in financial trouble they get bailed out because there are remarkably few consequences here.
How could eliminating the bar exam make it any worse? More importantly, when one considers that comprehensive accreditation reform would run hand-in-hand with any licensing change that would eliminate the bar exam, how could it do anything but improve the situation?
But back to his axe grinding about 3Ls taking “Law and Rodeo Clowning” or something:
Faculty would also have no external discipline with regard to curriculum. Many tenured law professors would much rather teach seminars in their areas of research than plow through a survey course in criminal law or property. Even where schools continued to offer the course that now comprise the basic first-year curriculum, the coverage would vary wildly from school to school.
Again, this is something happening right now. He admits that professors are teaching tangential courses in the status quo bar exam world. What is it about a one-time weighted, generalist exam on the back end that puts professors in check? An iterative grading process over the course of three years (or… maybe it could be two?)
All the bar exam does is defer responsibility for legal education. The law school is free to teach whatever it wants, free to blow off practical skills, and free to pocket tuition regardless of outcome (assuming it’s not vying for a top ranking).
You don’t fix rotting wood with ugly wallpaper and you definitely don’t then justify the wallpaper by saying, “Sure it’s ugly, but otherwise you’d see the holes in the wall.”
There are valid criticisms of law schools in here. Let’s not throw those out with the proverbial toxic bath water. But that’s also why diploma privilege advocates talk about law school reform. It’s not just one thing.
Let’s Not Toss Out the Bar Exam Just Yet [Bloomberg Law]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.