TCS Daily

The Best Bar... None

By Douglas Kern - June 22, 2004 12:00 AM

Congratulations, law school graduate! You've taken the first step on your path towards fortune and glory, and that throbbing sensation where your soul used to be won't bother you a bit in the years to come. (Remember: just a spoonful of humor helps the social parasitism go down.) With your J.D. degree in your case-briefing, note-taking hand, you now get to spend the summer cramming for that sixteen-hour, mind-numbing, cramp-inducing ordeal that all lawyers know and fear: the bar exam of your home state!

It's hard to say which is dumber: the fact that your law school failed to prepare you adequately for the bar exam, or the fact that you have to take such an absurd test at all.

After dropping as much as $100,000 and spending three years obtaining a law degree, you probably don't know enough law to practice it professionally; most law school graduates don't. Now perhaps you're wondering: if the point of law school was not to prepare you for the practice of law, just what was the point of law school? Easy: the point of law school was to make money for the law school. Mission accomplished! Oh, and as a secondary matter, the point of law school was to flatter the egos and delusions of the brainiacs who teach there. And that, young law school graduate, is why you can pontificate at endless length on theories of critical legal deconstructionist realism as touching upon Marxist feminist radical queer Afro-Latino post-structural comparative gender issues, but you still can't write a damn will.

Take heart! Law school may have failed you, but bar exam review courses will make a real lawyer out of you yet. Ah, bar exam review courses. I hearken back to my own bar exam review course, when my days were filled with lectures that packed legal obscurities into my brain like a fat man overfilling his only plate at the Sizzler lunch special. My nights were filled with endless drills and practice tests and homemade flash cards with arcana like "Law of Perpetuities" on one side and illegible, erroneous definitions scratched on the other. All this joy cost a few thousand dollars, but when you already owe Uncle Sam six figures for your oversized sheepskin, well, what's a few extra thousand between friends?

The lasting effect of this cramming? None whatsoever. Law school graduates cram to learn a test, not the law. So I memorized trivia from a dozen different legal subjects, puked out my knowledge in a hot Columbus meeting hall, and passed the bar exam. And I still couldn't write a will.

In principle, the case for certifying lawyers seems as plausible as the case for certifying any other profession. Just as you wouldn't want some Dr. Nick Riviera with a rubber-stamped medical degree carving out your appendix with hedge trimmers, so you wouldn't want some polyester-clad Lionel Hutz with a mail-order law degree and a head full of pine cones defending your DUI case. But do bar exams really weed out the dull and ignorant? The pass rates for bar exams range from 55% (California) to 85% and higher (Utah) -- not exactly Olympic-level competition. And there's no limit to the number of times a law school graduate can sit for bar exams. Any law school graduate without an untreated head wound will pass some bar exam somewhere after enough tries. Unlike scruples and honesty, dullness and ignorance are no impediments to the practice of law. (Humor, young lawyer padawan! Humor will keep the tort reformers at bay!)

Bar exams only test your ability to ingest and regurgitate legal information under stressful conditions. Admittedly, it takes at least a modicum of brains, motivation, and legal knowledge in order to pass. But no legal problem presents itself with multiple-choice answers, and few legal briefs are handwritten in twelve minutes or less. Given the innumerable different problems that lawyers confront, and given the myriad legal specialties that have arisen to resolve those problems, the idea of a single test for all prospective lawyers seems increasingly bizarre.

Rather than test the untestable, why not try the best test of all: the free market? Let would-be attorneys hang out their shingles, and let the public decide who should and should not practice law.

The standard objection to this approach springs from the alleged obscurity of the law: since ordinary citizens can't readily distinguish good legal work from bad, legal experts must certify the competence of capable attorneys and outlaw the legal practices of idiots. Ignoring for a moment that the legal world is full of buffoons even with bar exams, the best answer to bad legal work is the power of public reputation and the fear of a malpractice suit, not toothless regulation. (The same isn't quite true of medicine; unlike bad medical work, bad legal work tends to leave you alive to file the lawsuit.) If citizens trust a test -- rather than their own scrutiny -- to measure the integrity and ability of their attorneys, then "passing the bar" is just passing the buck.

Now that you're a law school graduate, you're cleared to know the following dirty little secret, along with the special lawyer handshake and the setting for the decoder ring: bar exams serve the purposes of guild socialism far more than they serve the public good. In each state, the Grand Old Men of Law set the bar exam pass rates based on the influx of lawyers that they deem tolerable in any given year. The net result? Fewer lawyers than what the market would otherwise produce, and thus higher fees and salaries for accredited lawyers. What's the purpose of flunking the bottom 33% of test-takers, as opposed to 25% or 50% or 5%? The answer starts with an "M" and rhymes with "honey."

Many an affluent lawyer would sink into the doldrums of mere middle-class comfort if the public learned the dirtiest secret of all: any intelligent, educated adult with a little exposure to the practice of law can perform about 60-75% of the legal tasks that lawyers now charge a fortune to perform. Most menial legal tasks aren't even performed by lawyers -- they're farmed out to legal secretaries, paralegals, and interns, with the lawyer's name attached as an afterthought. I myself learned nearly everything I know about the practice of criminal law from watching court cases, reading old transcripts, and reviewing official filings -- not from law school, and certainly not from preparing for the bar exam. Anyone could learn about the law and its practice as I did. And perhaps more people should. But if capable citizens took charge of their own legal destinies, a great many Mercedes would go unbought as rich lawyers fell from grace with the bank. And so the bar exam hoax continues.

So, to all you luckless souls preparing for bar exams: Repent! Turn back now! No, seriously: good luck, get some rest, and when it's all over, do yourself a favor and learn something useful. Like how to write a will.


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