Abolish the Bar Exam

barexam3a.jpgThe recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit sensationalistic for the WSJ, as its main purpose seemed to be to mock Kathleen Sullivan. I was interviewed by the reporter of the story a few days ago because of my blog posts earlier this year (here, here, and here) arguing that Bar Exam should be abolished.

The reporter emailed me and wrote: “I’m a reporter with the Wall Street Journal. I’m researching arguments in favor and against the abolition of bar exams, and wondered if you might have time to share your thoughts on this matter with me today.” I spoke to him about my arguments, but he asked a few times if I could name any prominent professors or lawyers who failed. I told him I didn’t know of any and that even if I did, I would consider revealing this fact to be a bit tawdry, as failing the Bar Exam is considered an embarrassing fact. I didn’t see why it would be necessary to bring embarrassment upon a person for a story about the abolition of the Bar Exam.

I was quite surprised when I read the story, a bit peeved at not being quoted, and somewhat annoyed that the story seemed to be primarily cast as a way to showcase Sullivan’s failure rather than address the problems of the Bar Exam. The reporter did not mention Sullivan at all in my interview.

So since they didn’t make it into the story, I want to reprise my arguments against the Bar Exam. As I wrote in a post called “Bar None”:

Yes, as radical as it may sound, I believe that the Bar Exam should be abolished. Not just amended. Not just tweaked. Not even modified substantially. No. I believe it should be abolished entirely. So all you graduating 3Ls stand up and cheer! I’ll accept generous tips, too. Actually, it’s too late for many of you, since you’ve already been put through the torment, having just completed the exam and wasted most of your summer. Now you probably want the torture inflicted on others — if so, the Bar is little more than a hazing ritual, one with about as much social value as guzzling beer while blindfolded and upside down. . . .

[The Bar Exam] prevents mobility among lawyers, making it cumbersome and time consuming to move to different states. It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter. In short, the Bar Exam is an unproductive waste of time.

My guess is most all lawyers would agree. So why does the Bar Exam persist?

Perhaps as a way for states to restrain competition among lawyers… but this would be an impermissible purpose. Perhaps inertia. Perhaps because of the “we suffered, now you must suffer too” mentality. I can’t think of good reasons for retaining the Bar Exam. Yet this misery-creating, time-wasting ritual survives — even thrives — despite the fact that it has no valid justification and has achieved near universal enmity.

In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers. I think that this is much better than wasting most of a summer studying for a meaningless test. . . .

I also provided a quick roundup of my arguments against the Bar Exam:

1. It doesn’t test on the kinds of skills a good lawyer should have.

2. It often tests on obsolete legal rules.

3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.

4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.

5. The Bar often weeds out people who don’t have the money to take an expensive course like BarBri. Certainly, there are the unlucky folks who take BarBri and fail, but this does not frequently occur.

6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?

7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.

8. Nobody really uses the rules as formulated on the Bar Exam. As I’ve written elsewhere, if one practiced the criminal law on the Bar Exam, one would be disbarred!

9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it’s much easier to make it past one Bar Exam than through three years of law school.

One of the main arguments for the Bar Exam is that it will help ensure that lawyers are competent. Our profession doesn’t do a very good job of this. It provides a meaningless entry exam (the Bar) and then requires attorneys to waste their time and money on expensive continuing legal education (CLE) courses. In the end, the only real way to ensure that lawyers are competent is for the profession to crack down on incompetence. Many a time, judges wince through incompetent lawyering and accept incompetent briefs and pleadings. Many an ineffective assistance of counsel case contains egregious actions by the attorney. It shocks me that attorneys can engage in some of these actions brazenly in front of judges and prosecutors without being taken to task. In short, the Bar Exam has little to do with competence.

So that’s why we should just get rid of the Bar Exam. Throw it away. Burn it. Bury it. And go to a system where lawyers-to-be spend some time helping the community while honing the necessary skills.

One big problem with the Bar is that it functions so as to make it very onerous for lawyers to move to a different state. Thus, Sullivan is already licensed to practice in New York and Massachusetts. She has already passed the Bar. But she many years later because she wants to practice in California she now must pass an exam filled with a bunch of irrelevant questions. In fact, the longer one practices and the better one knows the law, the worse one will do on the Bar Exam. That’s because the Bar Exam bears so little relationship to law practice, and as they tell you in BarBri class, thinking on the Bar Exam will hurt you, not help you. Sullivan’s problem was that she didn’t waste enough hours memorizing the often obsolete and reductive rules for the Bar Exam. Indeed, any practicing lawyer or law professor who doesn’t have a lot of time on her hands to waste would encounter a similar problem. She probably thought she knew the law and had a ton of legal experience — but this would hurt her in the exam, not help her.

Maybe some good will come out of this and the Bar Exam will be seriously rethought. Sadly, however, the WSJ article seems more intent on focusing on Sullivan than on addressing the problems with the Bar Exam.

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46 Responses

  1. Juan Gonzalez says:

    You hit it right on the money. Sometimes educational institutions are just there for the purpose of making money, not to help the careers of students. The U.S. educational insititution needs to be overhauled.

    Mr. Gonzalez

    USN Retired

  2. Dave! says:

    I haven’t taken the bar (still 2L) but I think you make very good arguments against the bar exam. However, it still strikes me as funny that “failing the Bar Exam is considered an embarrassing fact” in spite of the nearly universal agreement that it’s largely an exercise of memorization. I have a horrible memory, so I guess I’m in trouble!

  3. Mike says:

    I wondered if you were going to tie Sullivan’s failing into your abolish-the-bar argument. (Then I feared that you would be prohibited from blogging about the story since Sullivan teaches at Standford.)

    Anyhow, Sullivan is a bad example to support your argument. The problem with Sullivan’s case is not the bar exam; it’s California’s protectionist legislation that prevents lawyers like Sullivan from gaining recriprocal admissions to the California bar. (Lawyers like Sullivan should be allowed to waive in.)

    Recent law grads should be required to take the bar exam, since the bar keeps a lot of incompetent people from ruining future clients’ lives. If you have a better way to prevent people like this guy from practicing law, I’m all ears. But until you propose a way to protect good people from bad lawyers, the bar exam must stay.

  4. Mike — I agree that incompetent lawyers are a problem, but I don’t believe that the Bar Exam does a good job at weeding them out. The best way to deal with incompetence is for the profession to be better at policing itself. Far too often, judges and lawyers look the other way when they encounter an incompetent attorney. I’ve read about far too many an ineffective assistance of counsel death penalty case where the lawyer was sleeping, drunk, etc. There were judges and prosecutors in the courtroom when this incompetent behavior was going on. Why didn’t they do something?

    The bottom line is that the Bar Exam is not really a test for competence. It measures memory skills. And, in fact, it isn’t a good test of legal skills, because law can’t be boiled down to multiple choice questions; and anybody who applies the obsolete criminal law rules on the Bar Exam would be incompetent to practice law. The Bar Exam really has very little to do with legal skills. It’s not a measure of competence. It is simply a measure of whether a person has taken the time to memorize a bunch of irrelevant information.

  5. Mike says:

    The best way to deal with incompetence is for the profession to be better at policing itself.

    This is why we differ: Your approach requires a victim first. I think that incompetent lawyers should be disbarred – period. But that incompetent lawyer will likely ruin a client’s life first.

    So, for me, here is the question: How can we prevent members of the public from being harmed. Indeed, this is the question asked in almost any licensing context. Phamacists must have a license because we don’t want people taking the wrong medications. It’s not enough to say: “Well, if the person gets sick after taking the wrong drugs, he can sue the pharmacist.” (Or perhaps I’m misunderstanding you: Are you a libertarian on licensing issues?)

    Your approach would allow for after-the-face punishment (and such an approach is something I endorse). But I am worried about the poor souls who think that because someone is a lawyer, he or she is minimally competent.

    Think about it. Imagine you’re some poor sap living in Main Street, America. You’re just a working stiff without any connections to the legal world. You’d likely think that a person, by virtue of being a lawyer, is something special. (This is wrong, yes, but you have to imagine you don’t know what you know about the legal profession.) With the bar exam, at least the worst-of-the-worst are kept from practicing law. It’s far from a perfect system, but it at least provides some protection against incompetent lawyers.

    Without the bar exam, a lot of really stupid people and total whack jobs would have a law license. (There are, of course, people who fail the bar who would make good lawyers. But I contend that more bad lawyers than potentially good lawyers are prevented from practicing.) Sure, the bar exam isn’t perfect. But it at least protects the public from some people, namely, those who can’t pass the bar exam. (Which, let’s face it, isn’t that difficult.)

  6. Law Professors and the Bar Exam

    There’s an interesting article in the W$J today: Raising the Bar: Even Top Lawyers Fail California Exam. I guess it’s news because Kathleen Sullivan (Constitutional Law Superstar and former Dean at Stanford) failed the California Bar Exam. Over at Conc…

  7. Mike — A lot of bad lawyers are bad because they’re corrupt, have fallen into drug or alcohol abuse, and so on. Thus, although there are folks who are identifiable as incompetent at the outset, there are many who become incompetent later on.

  8. jimbino says:

    I have a law degree from UT Law at Austin, but I have never sat for the bar exam or practiced law on behalf of others. One of the reasons is that I have better pay and working conditions as a designer of bombers and fighter aircraft, intercontinental ballistic missiles and nuclear weapons.

    I mention all this so that I can point out to you that I have never been certified or otherwise vetted in my capacity as a nuclear physicist, and I have never submitted to drug test. I can practice my art on any of Jupiter’s moons, whereas you poor lawyers can’t even practice in the next state!

    And, as far as drunk lawyers in the courtroom is concerned, it seems reasonable to me to drink a lot if you have to practice law to make a living.

    Reform or die.

  9. Pooh says:

    One of my professors was very outspoken in his belief that the bar exam served mostly as a rent-producing barrier to entry, and I tend to agree. That being said, I think it is the form the exam takes rather than the existence of said exam which is the problem. I know the answer in advance (it would be too hard to grade…), but why don’t they rely more on actual lawyering skills, and I don’t mean the completely useless MPT.

    How about this: an issue, a collection of relevant (and perhaps some irrelevant) authority, and 8 hours. Go. (Wait that sounds just like a law school exam…)

    At the same time, it’s worth noting that the test at the other end, the LSAT, might not be much better. I can’t really complain because there isn’t a testing format in the world that makes me look comparatively better than time-pressured multiple-choice logic games. However, those results say nothing about the other abilities which may or may not have made me suitable for law, either practice or school.

  10. meep says:

    I don’t know why failing the Bar would be considered embarrassing, especially in a state with high failure rates. I didn’t see the article as trashing any of the prominent people who failed (heck, I thought the guy who failed the Bar over 40 times came off pretty well.)

    I’m an actuary-in-training, and I have a series of 8 exams to get through (plus some other stuff). Most of the actuarial exams have a passing rate around 40% — some lower, some higher. But it has never been considered embarrassing to fail the exams, even the first “easy” ones, because almost everybody fails one of the exams eventually. For example, like Dave! above, I’m not very good at memorizing stuff, and I failed an exam last year that was heavy on memorization… I hope I passed this year (I memorized a little bit more, but still found it tough), but I won’t know for another month. At many insurance companies, if you fail too many times in a row (usually 3), you’re fired; but my co-workers who lost their jobs thusly got jobs at other insurance companies in short order. Of late, on average, it takes about 10 years for people to get through the entire process.

    So, in short, I say to the lawyers: you don’t have it that bad.

  11. DML says:

    the only topic that should be tested for admission to practice is professional responsibility. you are right about the fact that answering legal questions off the top of your head (as the bar exam requires) would be considered malpractice and most likely a violation of the applicable pro. resp. code. it is more important that attorneys understand what constitutes malpractice & what the pro. resp. code entails. it would not guarantee a high level of practice (that is up to the law schools), but may guard against a low level of practice.

    the problem seems to be one of perverse incentives, meaning that the law schools get paid whether or not they teach effectively, and the bar examiners and review courses get paid whether or not competent people pass and incompetent people don’t. as far as reform, the fox seems to be guarding the henhouse. it is indicative that cal. and n.y., otherwise progressive states, have the two most unnecessarily excrutiating bar admission procedures.

    as for the wsj article, the reporting reflected the flaccid sensationalism, bordering on gossipy tabloid style one expects from less serious mainstream media sources. for example, why did the reporter not challenge the cal. bar rep’s claim that the difficulty level is to protect the public? wouldn’t it better protect the public to not allow graduates of unaccredited law schools to take the bar in the first place, like most other states?



    The whole bar exam phenomenon is just bullshit. One of my chapter sections is “Why the National Multistate Bar Exam is neither National nor Multistate.”

    I would be happy to pdf the chapter to anyone who is interested.

    Doug Litowitz


  13. John Doe says:

    Is there anyway to gain nationwide support for abolishing the bar exam? The whole point of going to an ABA accredited law school is to weed out the stupid people. Why isn’t that enough? Or at least, why not require lawyers to get specialized licenses for specific areas of practice. So for isntance, if someone wanted to do nothing but personal injury, get a personal injury license. If someone wanted to be a general practitioner, then the fact that they passed an ABA accredited law school should be enough. I actually wrote the Virginia senators an email, but no one has yet to respond. I suggest everyone upset by the bar exam to copy these email addresses (right from the Virginia Senate’s webpage) and send a copy of this letter.

    district01@sov.state.va.us, district02@sov.state.va.us, district03@sov.state.va.us, district04@sov.state.va.us, district05@sov.state.va.us, district06@sov.state.va.us, district07@sov.state.va.us, district08@sov.state.va.us, district09@sov.state.va.us, district10@sov.state.va.us, district11@sov.state.va.us, district12@sov.state.va.us, district13@sov.state.va.us, district14@sov.state.va.us, district15@sov.state.va.us, district16@sov.state.va.us, district17@sov.state.va.us, district18@sov.state.va.us, district19@sov.state.va.us, district20@sov.state.va.us, district21@sov.state.va.us, district22@sov.state.va.us, district23@sov.state.va.us, district24@sov.state.va.us, district25@sov.state.va.us, district26@sov.state.va.us, district27@sov.state.va.us, district28@sov.state.va.us, district29@sov.state.va.us, district30@sov.state.va.us, district31@sov.state.va.us, district32@sov.state.va.us, district33@sov.state.va.us, district34@sov.state.va.us, district35@sov.state.va.us, district36@sov.state.va.us, district37@sov.state.va.us, district38@sov.state.va.us, district39@sov.state.va.us, district40@sov.state.va.us,

    Dear Virginia Senators:

    I think it is time for Virginia to lead the nation by example and abolish the Virginia bar exam. The fact that Virginia requires lawyers to have come from ABA accredited law schools should be enough, as law school teaches the skills necessary to practice any particular area of law at any time. However, the bar exam does nothing to augment one’s education. Rather, all it does is require a person to attend a BarBri course and cram the information in a two month study session. Afterwards, one forgets everything he/she learned, as no one can truly be expected to remember the information learned so hastily.

    If the argument is that one is that one is simply “remembering” the information learned over the course of three years in a lawschool, much like final exams in college forced one to “remember” all of the material taught during the semester, then by definition the argument recognizes that the bar exam is mere surplusage with respect to gauging one’s abilities to understand and research law.

    People do not need to entirely know an entire subject in order to successfully practice small portions of it at any given time. Unlike doctors who must recall vast amounts of knowledge at a moment’s notice, lawyers are quite able to take their time and study-up on the particular area of law well before it goes to trial or the lawyer engages a client in a particular matter. Being a lawyer merely requires intelligence and the proper training pursuant to applying intelligence to research a specific problem. The fact that one can successfully graduate from an ABA accredited law school clearly demonstrates those abilities. The bar exam simply demonstrates one’s ability to memorize inordinate amounts of details over a two month period, to be regurgitated over the course of two days. A person’s intelligence does not suddenly go away as soon as law school is over. Also, nothing in the law requires such degrees of memorization or quick recall over a time limit.

    If you intend to keep the bar exam, please at very least give me some objective evidence that shows a correlation between passing the bar exam and the ability to practice law. Simply showing that some people fail it, even after passing ABA accredited law schools, does not prove anything. Rather, it just shows that they cannot memorize three-years worth of school in the course of two months and process it quickly enough on the test day. The only way to properly evaluate one’s ability parallel to the realities of legal life would be to give the bar exam as a take-home test with a month to independently research the material. However, this could never take place, as the possibility of cheating is too high. Unfortunately, that would still be the only real way to evaluate one’s ability to understand the law in a realistic manner. As such, the bar exam serves no probative purpose with respect to “weeding out” the unintelligent persons from the intelligent ones. That’s what law school is supposed to do. Why not take the lead in America and reopen this issue by calingl for legislative hearings with input from both sides (preferably from law school professors and practicing attorneys only) and re-evaluate the bar exam.

    -John Doe

  14. D. Bresn says:

    So many issues…….So little time…RE: Validity of Bar, I cannot say. It is good to have a rigorous examination as a capstone, but the utility of the information about a student as derived from the bar is questionable. Perhaps one has shown otherwise but it does not seem so. Regarding Ms. Sullivan; You know for sure she did not have the time to revisit archaic information for preparing. The press will amplify whichever facet of the story is most inviting to the reader. People will not look at the totality of the facts and go for the kill about how the Dean of a top law school failed the bar. Human nature. It is a sick trait in humans, we secretly do not mind others failures, it gives us more people to relate to. The only thing Ms. Sullivan surely wishes she had done was to prepare better. (And would this preparation be by proxy preparation for practice or school management, of course not). Wisdom is the only issue in the whole exam failure scheme. She shoulda prepared. I feel for her, in law there is tremendous value placed on LSATs, Grades, Bar, etc. Anything that quantifies you as a performer is huge in law. Students and lawyers are fixated on esteem through score rather than integrity in some cases. This will make a tremendous chapter in a book she will write in the future. It could be a tremendous thing for the field of law and law school. Law students and prof’s and lawyers need to be more human. It would enhance their experiences. I wonder if Ms. Sullivan puts more of her soul in her vast constitutional work, arguments before the Supreme Court, running the legal training arm of the top school in the world, bright practice future; or does she pay more heed to this one obstacle. Give me a break, this is a bump in the road……..we need bumps.

  15. Dale Arnett says:

    I’m a 3L soon to go through the Kentucky bar exam. I’d sure like to see a world in which bar exams are not necessary! If we can’t do that, there IS one thing that states could do on their own:

    Require examinees to use state law and ONLY state law to analyze answers for the Multistate Bar Exam. If an MBE question has no correct answer based on the law of a given state, it should not be scored. That would force NCBEX to enter the 21st century.

  16. Dale Arnett says:

    Clarification on my last post:

    When I said “ONLY state law,” I did mean to include federal law as well. Obviously, federal law IS a part of state law, to the extent that states are preempted by the Constitution. My point still applies, though. IMHO, states should require that their law (including federal law as applicable) be used to answer MBE questions, not ancient common-law doctrines that aren’t used in real life any longer.

  17. Jason says:

    The argument for apprenticeship is an interesting one, but that implies that everyone wants to “be a lawyer” and that everyone who wants to “be a lawyer” wants to do so right out of school.

    What does that mean? One of the reasons I’m attracted to law school is that it opens up opportunities in lots and lots of areas to work. Many of those do not involve being a “lawyer” and thus do not require any kind of certification, whether that cert. comes from an exam or otherwise.

    So if I graduate and some company wants to give me a job, or I want to start a business, or whatever, what happens to my provisional period? Does it get used up in the, say, ten years that I’m working in this other industry? What if after that, I decide to go become a personal injury lawyer in my home town?

    Under the current system (which I’m hardly defending, because I recognize the lameness of tests in general, including those almost-ok law school kind), this is “allowed” in that you can just sit for the exam whenever you decide to make your career move.

  18. AutoMuse says:

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    Blawg Review Incites Riot Over Best of the Blogs The Editor ‘n’ Chef (yes, Chef) of Blawg Review was NOT amused by the BOBs selection of best blogs. But no matter. December 26, 2005, gentle readers, is the Big Day…

  19. While generally I agree with the substance of your comments on the bar, there are some exceptions. The Maryland Practitioners exam (which lawyers licensed in another jurisdiction with more than 5 years of experience can take to gain admission to Maryland) was actually reasonably useful. The exam focused entirely on Maryland procedure and was a good way to learn about practical issues like filing a complaint in Maryland, obtaining liens, seeking appeal and grounds for jurisdiction. I also have to admit that I actually found the process of taking the Maryland exam somewhat enjoyable after being 14 years removed from law school. I studied for the exam with a couple of other solos through a course taught by a Maryland lawyer – and it was nice to be able to focus on something tangible that would end with a thumbs up or down (as opposed to many of my cases which can go on for years without a clearcut decision). Of course, I should add that have nothing but pleasant memories of studying for the NY bar – I spent the summer in beautiful Ithaca with many of my law school buddies and had the luxury of being able to simply study for the bar and not work. We’d go up to the classroom and listen to tapes for 3 hours, then go out to lunch. I’d spend the afternoon reviewing my notes and doing practice exams and then at night we’d go out the Ithaca bars or maybe down to the lake or on an outing somewhere on weekends. The exam of course was stressful and I spent months thinking that I’d flunked, but the process of studying was (and perhaps this is a sad commentary) one of my most enjoyable law school memories.

  20. John Doe says:

    I was reading that the California bar exam has such a low passage rate because most of the people that fail are from non-ABA approved law schools. Maybe the bar exam should simply be an *alternative* to a 3-year education from an ABA approved law school. Essentially, graduation from an ABA approved school implies the necessary intelligence and skill to become a lawyer. Passing the bar exam would also demonstrate these abilities for people that did not otherwise prove themselves by attending and graduating such a school.

  21. Christina Smith says:

    The bar exam is a waste of time and money. The review classes add up to thousands of dollars and there is no guarantee you will pass. After going over $100,000 in debt after law school and failing the bar exam by two points I was at a loss. I had to turn down my one job offer. My grades were fine in law school and I was in the top 10% on all of the practice exams I did for the bar. It puts your life on hold and makes you feel like you wasted years in school and spent money you will never be able to pay back.

  22. I agree the ‘bar exam’ should be abolished, done away with unless the student is allowed to use the law books. When you are practicing law, you will have full access of law books…you are not practicing law based on your memory. Law school teaches you how to research law and use the books and apply the law. I think it is unfair to make a person take the exam without books. My hat is definitely off for abolishing the ‘law exam’. You ask me, it was only done to make more money.

  23. Colleen Raphael says:

    The state of Wisconsin gets along fine without a bar exam for students willing to go to school in Wisconsin (terminology: diploma privilege). After relocating and comparing notes with lawyers who went to school in California, I think that I received a better legal education at Marquette. The professors at Marquette and Wisconsin know that when their students get out, they will be licensed attorneys, and therefore concentrate on teaching the actual law rather than going off onto tangents and counting on a bar exam to do their jobs for them.

  24. Exposer says:

    Do any other countries have a balkanized, i.e. state-by-state bar membership restriction against interstate commerce like we still impose upon our profession here in the USA? For that matter, how many OTHER countries require that law be a graduate level educational program instead of an undergraduate one? Canada requires a year or two, I’ve heard, after completing college. Any other countries though? European ones don’t, right? When will the USA catch up with the rest of the world in the globalized new millennium? Probably no time soon, because of the predatory inertia involved. But as Ben Franklin said “the people have the government that they deserve.”

  25. The Voice of Reason says:

    The choke point of the bar exam rests with the legislature – ultimately, they allow it and they can forbid it. In order to make them forbid it, they have to see it’s a hot button issue. In order for that to happen, there has to be public exposure. I urge you all to write to your legislatures and even your Supreme Courts and send them the links to these blogs that reflect the most rational of opinions about this horrible exam.

    It’s absolutely terrifying that a lawyer I know said the bar exam was good and should stay because he had to take it . . . wow, it really has become a hazing ritual. A learned profession indeed!



  26. John Audlehelm says:

    I wholeheartedly agree with what I’ve read above. The bar exam is a senseless waste of time and should be destroyed. I’m ashamed and disgusted that the legal profession allows it to continue to exist.

    I am currently studying for it in Iowa. No, I haven’t passed it yet, so yes, there may be some value to it that I don’t understand yet. But I seriously doubt it. The fact that everybody – and I mean EVERYBODY – I have known who has taken it denounces it as a waste of time counts for at least something, in my opinion.

    I say again – I am in Iowa. If there is anybody else in Iowa who reads this and agrees with me, and wants to do something about it, you can contact me at jaudlehelm@yahoo.com and we’ll try to figure something out. I want to be in the last class that ever takes it in this state.

  27. socrateaser says:

    It’s remarkable that so many lawyers believe the bar exam serves no useful purpose, yet there is absolutely no legislative or judicial activity anywhere in the nation attempting to eliminate this right of passage.

    I suggest that this is true, precisely because the bar exam “is” a right of passage. It’s simply a throwback to the ancient guilds of the middle ages, which sought to maintain exclusivity via punitive means, so as to impress upon their membership, the value of the honor bestowed.

    There is only one reliable test of lawyering — providing real clients with real relief in the real world. Everything else is nonsense — voodoo witchcraft, for lack of a better name.

    The fact that a person graduates from an ABA-accredited school, or that he/she obtains a high LSAT, MBE score, GPA or the like, is all very interesting, and may serve to give potential employers some sense of ability in their choices for new legal talent. But, at the end of the road, nothing would serve the public interest more successfully than to force aspiring legal practitioners to spend a year handling about 50 real cases under the watchful eye of an experienced litigator.

    Is such a major change likely to occur? Not a chance, because it would severely cut into the revenue of law schools, and it would render ABA-accreditation, and bar review vendors, almost meaningless. Yet, this is exactly the sort of on-the-job training that the medical profession insists upon.

    One of the unfortunate failings of a representative democracy is that a vested interest group can promote and maintain its interests in the face of the interest of the general public.

    Abe Lincoln did not need to sit for the bar exam — Thomas Jefferson did not attend an ABA-accredited school and James Madison did not have an LSAT score (of course, he wasn’t even a lawyer). But, their understanding of the People’s legal needs was legendary, and how many of us modern lawyers, with all of our statistical metrics and tests would take a crack at rewriting any of the laws of our predecessors?

    Answer: not one of us.

    The legal profession needs an injection of medical profession style training. Anything less is not nearly enough to bring about any meaningful change.

    PS. I frequently read from some attorney graduate of an ABA-accredited school, about how bar passage rates would be comparable in California if all those non-accredited applicants were not permitted to sit for the bar. However, if you read the statistics published by the National Conference of Bar Examiners, and only compare bar passing rates of ABA-accredited applicants, the California Bar is still considerably more difficult, on average, than any of the other 49 bar examinations.

    The point is not to promote the value of non-ABA lawyering or to denegrate ABA schools (or even to show that California does things right vis-a-vis other states, because it doesn’t, in my opinion), but rather to emphasize that the only thing that really matters is the individual’s determination to learn the law and to act in the best interests of his/her client.

    Everything else is just smoke and mirrors.

  28. alexandra says:

    I think that they should abolish the bar exam. My God, you have been through law school three years, wasn’t that enough?

  29. Matthew says:

    The problem is the ABA. The reason states are reluctant to remove the bar exam requirement is the ABA. Law schools were capable of producing competent lawyers long before the ABA. Many schools are authorized or accredited by a state and some have been in continuous operation for over 95 years. Most are located in the states of Alabama, Arizona, California, Georgia, Illinois, Massachusetts, North Carolina, Pennsylvania, Tennessee and Puerto Rico. Some state authorized law schools are maintained to offer a non-ABA option eliminating costly ABA requirements seen as unnecessary by many of these states.

    Wisconsin operates just fine without a bar exam requirement for graduates from their approved schools that the ABA just so happens to recognize. You can also thank the ABA for your astronomical tution fees. The individual determines the calaber of attorney not the school and not the bar exam. Actually, some states still permit an attorney to receive their training by law office study/apprentiship. At one time the bar exam was a beautiful right of passage and example of one’s commitment to the law until the ABA began influencing states and schools and basterdized the legal profession. I find it odd that the ABA will not recognize some law schools but will automaticly enroll a graduate of that institution into the association when they enter the legal profession.

    The bar exam is not a great introduction for a young lawyer into the legal community but it is the system we have in place. I wanted to be an attorney more than anything in the world so I studied and passed it just like all the other tests I took in law school.

  30. Lindsay J. Webb says:

    In response to a post on non-ABA approved law schools: Massachusetts School of Law is a non-ABA approved law school and their students have an 89% success rate on the BAR exam.

    I am an undergraduate student who would bomb the LSAT if I ever dreamed of taking it. I just “took” two practice essay q’s online for the NYS BAR. Obviously I was unable to write any essays. However, I was able to get 3/3 of the issues correct on the first Q and 1/3 correct on the second Q. Not bad for a 2.6 GPA.

    If I had 3 days to answer 10 essays, at home, with books, I might have been able to do okay. I might not have passed, but I would have improved.

    My point: while memorization and familiarization techniques are important-they lead you to the correct portion of that law book that has the case law/statutes you need to prepare your argument/brief-it is not a good measure of competency as an attorney. Law students are not the only students that are taught to conduct research in order to prepare arguments and answers to god-awful essay questions. Why then, does modern education insist on testing our memorization skills, and not our ability to “go find” answers? I understand that you should have some previous knowledge in the area you are working in, but it is unrealistic to think that an attorney will not use his/her research tools to better his/her arguments. What a fool you would make of yourself in court if you base your oral arguments on something you learned 3 years prior in Contracts! Each case potentially has an individual component that was not in the previous case you argued, and was, oops, not discussed in Contracts. The key is to figure what that issue is, research it, prepare it, and argue it.

    This is what students taking the BAR should be doing. They should be showing us how they can find answers or prepare arguments, not how they can memorize the law, that will come with time and practice in your specific field of choice.

    Make the BAR a take home, its not cheating, its evaluating skill.

  31. ljw says:

    I think Vermont might be one of those states that lets you work so many hours, “read the law” under the supervision of an attorney, and then you can practice. I’m not sure if you have to take the VT BAR or not, but you do not need a JD.

  32. Nicole says:

    Lindsay, I don’t know where you got your statistics of the Massachusetts School of Law from, but I went to law school in Boston and graduated in May, and I’m pretty sure that MSOL’s pass rate certainly was not anywhere near 89% when I lived in Boston. I could be wrong but I don’t think that stat is correct.

    Anyway, I am a 2006 graduate who recently passed the PA and NJ bar exams. The bar exam is, as someone else pointed out, largely a rite of passage that does not at all test one’s capacity to be a lawyer. Getting rid of it is a great idea in theory.

    But let’s face it. The bar exists to regulate the number of lawyers entering the profession and keep attorney salaries fairly high. They are NEVER going to get rid of the bar exam. One or two states might try it but believe me, the bar will be back even in those states. Lawyers will lobby. We are not going to allow our job market to be crowded with thousands upon thousands of MORE lawyers when a simple exam could keep a few thousand out and allow us to keep charging high rates. I’m not saying that it’s fair but it’s a fact.

    The bar exam is difficult and admittedly pointless but it can be passed. So people really just need to resign themselves to the fact that they will have to take the bar and it will be hard, and study for it.

    I mean, come on. I had to take algebra to graduate from college, a class which did absolutely nothing for me. If I didn’t pass algebra I couldn’t graduate and even GET to law school. I was a wate of time for, but it’s a rite of passage. Every profession has it, sad but true.

  33. Nicole says:

    Lindsay, I don’t know where you got your statistics of the Massachusetts School of Law from, but I went to law school in Boston and graduated in May, and I’m pretty sure that MSOL’s pass rate certainly was not anywhere near 89% when I lived in Boston. I could be wrong but I don’t think that stat is correct.

    Anyway, I am a 2006 graduate who recently passed the PA and NJ bar exams. The bar exam is, as someone else pointed out, largely a rite of passage that does not at all test one’s capacity to be a lawyer. Getting rid of it is a great idea in theory.

    But let’s face it. The bar exists to regulate the number of lawyers entering the profession and keep attorney salaries fairly high. They are NEVER going to get rid of the bar exam. One or two states might try it but believe me, the bar will be back even in those states. Lawyers will lobby. We are not going to allow our job market to be crowded with thousands upon thousands of MORE lawyers when a simple exam could keep a few thousand out and allow us to keep charging high rates. I’m not saying that it’s fair but it’s a fact.

    The bar exam is difficult and admittedly pointless but it can be passed. So people really just need to resign themselves to the fact that they will have to take the bar and it will be hard, and study for it.

    I mean, come on. I had to take algebra to graduate from college, a class which did absolutely nothing for me. If I didn’t pass algebra I couldn’t graduate and even GET to law school. I was a wate of time for, but it’s a rite of passage. Every profession has it, sad but true.

    Oh yeah: and Vermont’s program- you MUST have a J.D. to do it. The program is that a select number of people (this is an experimental program) graduate from law school they work under the supervision of an attorney for a specified period of time, and can then be admitted to the bar. But a J.D. is required and the program is reportedly very difficult to get into.

  34. Amy Wallace Potter says:

    A friend of mine from Australia just sent me this when I was talking about taking my 4th bar exam. Nebraska in 1998, California in 2001 and Nevada in 2006. Had to take the whole thing each time, CA because I hadn’t yet practiced 5 years (otherwise could have gotten out of the MBE), NV because you have to take the whole thing no matter how long you’ve been practicing (and that includes taking the MPRE again). Now I’m going to head home to Montana and I have to take everything but the MBE and MPRE again. I guess there might be some value to the first one right out of school, but I don’t think it adds anything (but another $2000 to $3000 out of pocket) after that. The practice exam in particular is a joke. Practicing attorneys usually do the worst because they know too much — does that make sense? Cali is the hardest one I’ve taken, nearly had a psychic break but luckily have passed all the ones I’ve sat for. Oh well, it is what it is, maybe it keeps the numbers down a little, there are over 200,000 attys in Cali alone . . .

  35. Madison says:

    I would imagine legal analysis would be the only thing being tested on the bar exam. Surely there is no need to test one’s memorization skills, as anyone that has been able to graduate college and law school has the ability to memorize information. The question then becomes: why not allow open book bar exams? If it truly is testing only the ability to analyze a fact pattern and apply the law, why not make it open book? What possible explanation could there be in forbidding notes except to “weed out” people? It makes absolutely no sense and I can’t stand the lie of “minimum competency” the bar examiners hide behind when their actions contradict their words.

  36. Rubert says:

    I can handle certification requirements. The concept of the bar is not totally without merit. In my state we have 1 day of essays (12) and the mbe the other day. Why in heaven’s name do we have to take the MBE? I’m looking to practice my state’s law, not some generalized form of the law. It is a horrible joke having to memorize two sets of law for many subjects on an exam already packed full of information.

    Would it be too much in some states to let people pass in parts? Memorizing a phonebook of information is not easy.

    I agree with the people advocating skills test. I’d also suggest a mandatory ‘mentoring’ system along the lines of what medical education mandates.

  37. idiot - must be cause Mike says so says:

    Hey Mike, which bar exam did you take exactly, Idaho or Minnesota? I am close aren’t I?

  38. Chase says:

    The reason the Bar still exist even though so many lawyers consider it useless is because very few realizes how outrages it is until after they have been through the experience of preparing and taking the test. After that, I imagine many of the test takers fall into the “hazing mentality” that I had to go throug it, therefore everyone else should as well. You really want an army to mobalize against the Bar ritual, target law students who are dreading the day they have to navigate the “bar experience” and start them fighting to abolish it.

    I too like the idea that the Bar could be an alternative to an accredited law school for those who gain an interest, or experience from working in the law field later in life when attending three years of classroom law school may be inpractical and/or unnecessary, but it appears that even in THAT circumstance, the Bar needs to be revised to become a REAL test of one’s legal skills, not just an initiation.

    If revenue is the issue, it should still be okay to require a payment of dues that are sufficient to operate a regulating agency for lawyers, I would imagine a good lawyer, just like a good cop, cringes at an incompetent attorney giving them a bad name.

    Last, with regard to weeding out incompetent lawyers, you do NOT have to wait until a client’s life is ruined before you identify them. Before a lawyers shows up in court for a trial, they shoud have been in for many hearings, depositions etc. That allows for opportunities for other lawyers to note levels of competence (I once saw an attorney CLEARLY IMPAIRED in a depo) and it would be nice if other attornies would be able to confidentially make a complaint without fear of retaliation or some other subvert consequences.

    I am not a lawyer yet, but I am considering a pathway to becoming one and one thing I’d like to see is the rules and ethics for attornies be a bit less vague. It’s tough on rules for billing and handling a clients money, but everything else is rather subjective IMO.

  39. Ryan says:

    I completely agree with Mr. Solove’s proposal to abolish the bar exam. I only wish to add a few reasons to Mr. Solove’s argument for banning the bar exam.

    After taking the bar exam this past summer and spending countless hours preparing and worrying about the exam, I discovered the primary reason for my anxiety and stress: uncertainty. There is absolutely no way of knowing what the bar examiners will test on a given examination. While bar prep courses and others will provide guidelines on what the bar examiners have tested in the past, I discovered after taking the July 07 NY exam that many important topics on the essay portion of the exam were not covered (i was not alone in this assessment). After the exam, I thought about the countless hourse I devoted to preparing for and worrying about how a particular topic will be tested, only to realize the topic was barely tested at all.

    Not only does the bar exam test a skill that most lawyers do not need to succeed (e.g. memorization), it does not even reward those students who spent countless hours memorizing vasts amounts of obsolete knowledge. It is quite possible that a student could be tested on all the points he was weakest on and none of the points he was strongest on any given examination. This was a great source of anxiety for me in preparing for the exam. I can only hope I will never have to go through it again.

  40. Chesseley says:

    I agree. After passing the bar some 4 years ago I was subjected to taking the bar exam again and found it much more difficult and frustrating after practicing. There were a number of questions in review that I found myself saying that this is the answer the testers are looking for but I just had a case like this and the answer they want was ridiculed as ridiculous or “hornbook law” by Judge X. It is utterly annoying and frustrating!

  41. Marvin says:

    We agree with abolishing the bar. We find the same observations here in the Philippines. To add, why should there be a term “incompetent lawyer/s” if the Bar EXAM had indeed tested their competency. Here there are judges and lawyers, dismissed for gross ignorance of the law!! Why? Probably the BAR exams failed to remove their ignorance.


  42. Sam Swift says:

    It would be great if we could abolish the bar exam. But that is probably impossible. I am preparing to sit for the NJ Bar and it will be my third time. It is very tough to work to support my family and study for this hell. Plus the added stress of being in enormous debt (student loans). Although I am more prepared than ever, it is still going to be a gamble. Always just pass or just miss the mark on practice tests and missed the actual bar by six points last time. It hurts so much to fail after working hard and doing well in college and law school. Feels like my life has come to a screeching halt and has become a waste. But this blog has made me feel better, so thank you and good luck. S

  43. Sam Swift says:

    It would be great if we could abolish the bar exam. But that is probably impossible. I am preparing to sit for the NJ Bar and it will be my third time. It is very tough to work to support my family and study for this hell. Plus the added stress of being in enormous debt (student loans). Although I am more prepared than ever, it is still going to be a gamble. Always just pass or just miss the mark on practice tests and missed the actual bar by six points last time. It hurts so much to fail after working hard and doing well in college and law school. Feels like my life has come to a screeching halt and has become a waste. But this blog has made me feel better, so thank you and good luck. S

  44. Lynne Smith says:

    I agree that the BAR ezams should be eliminated. It is NOT a fair assessment of one’s ability to practice law. I have worked as a Paralegal for nearly 20 years years. Half of the time was working independently as a Paralegal. I graduated from law school in California in 2001. I have taken the Ca BAR exam more than 5 times. Each time, I am close and missing it within a few points. I believe this is a way to control certain individuals from being an attorney. It all comes down to the graders who hold your life fate in the palms of their hands. This test doe not serve any paricular purpose but to control the legal profession and ween out those who “the graders” can play with one’s life.

    It is both costly and annoying spending such much money for preparation of the exam and applying for the exam. I also feel my life is on hold because as it is now, I am not an attorney, but not a paralegal either. Thank you for all the support from all those other posters on abolishing the BAR exam.

  45. Lynne Smith says:

    Correction: The above posting first sentence should read: I agree that the BAR exams should be eliminated……

  46. Eric says:

    After being an attorney for five years, I have altered my initial opinion of the bar exam.

    At the end of the day, the bar exam achieves the ultimate result – weeding out people that cannot handle the pressures of the profession.

    The amount of stress involved in studying such a massive influx of information and being able to make sense of it on a timed exam accurately reflects the requirements of being a lawyer.