Ilya Somin has A Modest Proposal for Bar Exam Reform:
Members of bar exam boards, such as the Virginia Board of Bar Examiners 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?
Prof. Somin's point is that the bar exam as constituted is pretty silly. And he's mostly right: the bar exam tests only a small fraction of what lawyers need to know, much that they don't need to know, and even more that they don't need to have memorized. We all forget lots of it quickly. I know that I couldn't pass the New York bar exam today without some serious review — I've forgotten huge swaths of estate, family and criminal law, not to mention most of the details on New York's CPLR. On the other hand, I've learned huge swaths of things not tested on any bar exam, including federal administrative law, trademark law, and of course internet law. Does that make me a bad lawyer or a specialist?
Unlike some, however, I don't oppose the idea of a bar exam in principle. I think there's much to be said for ensuring that all lawyers have a common foundation. There may also be something to ensuring that people who practice in a given state are sensitized to the peculiarities of local law, although I'm less certain about the need to enforce that with an exam. The problem is that the bar exam's choice of subjects is arbitrary and archaic, and the testing somewhat picayune as well.
To those about to undergo our profession's hazing ritual, good luck.
Oh, dear. Professor Froomkin, you’ve just committed an ethics violation by implying that you’re a “specialist”.
Really.
The Rules of Professional Conduct (7.2, 7.4; varies somewhat by state, and New York’s recent adoption is even less clear!) essentially prohibit using the word “specialist,” absent some mealy-mouthed certification… unless, that is, one is a member of the Patent Bar (which has its own bar exam) or certain aspects of bankruptcy. <sarcasm> So slap yourself on the wrist and consider whether Rules 8.1 through 8.3 apply to this egregious violation of a standard intended to protect the public from its inability to understand, in this day of “specialist” football players and landscape maintenance crews, that “specialist” does not necessarily imply greater skill, training, certification, or regulation. </sarcasm>
Then remember that the people who enforce that particular standard are the same people who profess that the bar exam works to keep unfit persons out while admitting all fit persons.
Hmm. Maybe I’m not a specialist after all…
Professor,
I agree with you wholeheartedly.
I do believe, however, that there’s serious merit in making future lawyers take the bar exam. Being a lawyer is a serious job. There are exceptions of course, e.g., Prof. Sullivan, but on the whole, those that fail tend not to have treated the process (and often, for that matter, law school) as seriously as others. To the extent that bar exam operates in this manner as a barrier to entry, I see value in it.