July 11, 2005

J: Bar Exam

by Guest Contributor

Sorry for the long absence - after my 1,000 mile cross country drive, it's taken a bit of steam out of my blogging. But I'm settled in now someplace much warmer, which isn't necessarily the best thing for the summer months.

With that disclaimer out of the way, time to talk about the Bar Exam.

My personal stance is that the bar exam should not exist, much as no entrance exam is required for shoe repairmen, restaurant owners, or traveling salesmen. However, some have argued that a better approach might be to re-tailor the bar exam. Benjamin Barton, for instance, has argued in a couple of articles that admission to the bar should consist of basic procedural certification. (33 Ariz. St. L.J. 429 and 37 Ga. L. Rev. 1167). Indeed, he argues that the entire law school system (including the requirements of 3 years of undergraduate education) should be replaced by a short (6 weeks?) course on familiarizing students with the basic pleading and filing requirements of the court.

Why? Well, the answer is that the only real legitimate argument for any licensing of professionals lies with public cost. By tailoring legal training in this manner, Barton argues that the burden on the courts can be lessened, as delays associated with improper filings are avoided.

It's a neat point, but it might be without proper evidence. The legal field was largely deregulated into the 19th century, and surely there hasn't been a substantial increase in the amount of court rules. While the federal rules associated with evidence and civil procedure now exist, many of these rules were merely codifications of existing common law. Where they differed - it's just an alternative outcome, not another layer of complexity. It's no harder to learn a hearsay exception in a particular case than to learn the absence of that hearsay exception.

Professor Ribsten (of Ideoblog) has argued that the regulation of lawyers can be seen as a property right (in the same vein as IP) that gives lawyers an incentive to develop the law (69 Mo. L. Rev. 299). This might be true, but it's especially troublesome. Why would a society entrust some small group of professionals with the governing of citizens simply because they have the gusto to take the LSAT? It's likely often the case that the incentives of lawyers in developing the law wander significantly from those of the general voting public. Lawyers might draft law especially likely to attract clients, something citizens might not want. If one industry found itself often entangled in personal-injury suits, it might persuade lawyers representing the industry to develop law favorable to Big Corp. On the other side, lawyers might draft laws hurtful to business as well. It's probably not fair to say that these interests will always cancel out either (and if they do, what's the point?). For instance, plaintiffs lawyers' interests are largely dominated by large payouts. The considerations of a company looking for a location to set up shop, however, are likely more complex, and involve potential personnel, the convenience of clients, state taxes, and real estate.

I don't give any of the aforementioned articles enough justice in this small space here, so read up if you find any of this interesting. My vote, however, remains with the elimination of the bar exam (and mandatory law school, for that matter).

That said, I'll be happy to take my inflated paycheck when offered to me.

July 11, 2005 07:41 PM | TrackBack
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