The Destruction of Young Lawyers: Beyond One L

3. The Pointless Ritual of the Bar Exam

chapter three: The Pointless Ritual of the Bar Exam T he bar exam is a charade that should be abolished or radically reformed. It has no pedagogical purpose and it does not ensure that lawyers possess rudimentary skills. Ostensibly designed to protect the general public by ensuring that lawyers have minimum qualifications, it fails to provide any protection because the material on the exam is arcane and unrelated to the ability to practice law. A person can fail the bar exam and still be a perfectly good lawyer, and the reverse is also true: a person can pass the bar exam and still be a lousy lawyer. The bar exam is a test of test-taking ability, but since lawyers do not take tests, no purpose is served by training them to become good test-takers. So the bar exam does not benefit the public by ensuring rudimentary lawyering skills, and it does not benefit young lawyers by providing them with useful information. It benefits only one group of persons: existing lawyers. It does this by slowing down the entry of new lawyers into the profession , and by scaring young lawyers into cowering submissively before the awesome power of the organized bar and the licensing authorities.The whole process brings to mind The Wizard of Oz, in which the Tin Man and the Cowardly Lion were scared by the Great Oz until they discovered that it was just an insecure man behind a curtain. Despite all of the bombastic rhetoric about “assuring the public and the courts that lawyers are competent,”1 the bar exam is not about competence. It is an object lesson in greed and a demonstration of how powerful interests create screening mechanisms and rites of passage to marginalize, humble, and humiliate outsiders. The only way to pass the bar exam is to take a very expensive bar review course which reduces the law to Mickey Mouse formulae and comic book simplifications that are instantly discarded once the exam is finished. The review process thrusts students into a subterranean world of impossible outlines , study regimes, and endless gossip in search of little tricks to pass the exam. In the process, students do not pick up any practical lawyering skills and obtain zero knowledge of how to run a law practice. And since students are expected to pass anyway, there is little exultation in passing the exam but immense humiliation in failing, so the dangers outweigh the rewards, which is a hallmark of pointless rituals. What’s worse, this expensive, intrusive, and useless ritual does not weed out a sufficient number of people to make an impact on the profession, since people who fail the exam can take it repeatedly until they pass: one California lawyer passed the bar on his forty-eighth attempt .2 On the other hand, the bar authorities have flunked lots of people who have gone on to become highly qualified lawyers, such as Senator Hillary Clinton and Gerry Spence.3 So the bar exam does not successfully weed out those candidates who are so incompetent that they repeatedly fail the exam, and it wrongfully excludes competent lawyers who happen to underperform on a given day. It is a total failure. The bar exam has not been a constant phenomenon in American history. At the beginning of the twentieth century, in what is now considered the golden age of the profession, only a handful of states actually had a board of bar examiners, and only a few states required a written exam.4 This means that many of the most esteemed lawyers in American history (for example, Justice Oliver Wendell Holmes) never took a formal bar exam of the type required nowadays. In fact, Abraham Lincoln was a bar examiner in the State of Illinois, and he once gave a bar examination and certified a young lawyer for practice in Illinois while taking a bath.5 The modern bar exam emerged in the second and third decades of the twentieth century as part of an effort by the WASP-influenced American Bar Association to stem the tide of new lawyers, most of them ethnic immigrants and Jews. According to one legal historian who studied the founding documents of the ABA, “The fight for higher standards was aimed in principle at incompetence, crass commercialism, and unethical behavior; but it was clear in the language of the leaders of the bar that ‘the poorly...