August 10, 2005
Day Three: We Don't Need No Bar Control
August 10, 2005 12:36 AM
After two days of advice and reminiscence about the bar exam, we now turn to arguments for getting rid of it altogether. Daniel Solove and Jonathan Edelstein both declare the bar exam to be useless for all purposes except enriching the bar review industry and slowing down the introduction of new competition to the legal service industry, neither of which are worthy goals. To put it in constitutional terms, the bar exam fails the rational basis test, and they urge that it be eradicated in favor of providing legal services and improving the education provided by law schools.
Prof. Solove: I never agree with a lawyer, but I concur with your bar exam points, plus.
1) The lawyer profession is a criminal cult enterprise. The Bar exam is just cult stuff. One cannot dissuade a cult. One must get custody of the body to deprogram. Federal prison is a good place.
2) The results are racially discriminatory. Minorities fail it at a higher rate. Strict scrutiny, not rational basis, Sir. The Bars will not release the failure rates by sex and age, despite any sunshine law. Intermediate scrutiny may also apply if enjoined for the data. You will be surprised to learn that law students have unanimously panned such Federal court action, even just discovery. I would be curious to know the opinions of the law students you ask. They want to take and pass this exam.
2a) One may argue it is the ultimate employment test, and the burden is on the Bar, under Title VII of the Civil Rights Act.
3) Its structure stems from Alexander of Hales, a 13th Century friar. It violates the First Amendment Establishment Clause.
4) It lacks modern psychometric competence. It was
advanced in the 13th Century, to its credit. What are its 5 forms of reliability? How was it validated (a technical statistical term, not a philosophical one)? One IQ test, the most validated, and powerfully predictive test of all time, with 10,000 validation studies itself, was banned because of racially disparate results.
This is the California decision at their SC level, upheld in CA (9th cir), denied cert at the USSC. This is the most validated test in history. Take it at age 5, it predicts performance at age 50. The bar exam lacks the most rudimentary technical validation and is silly, subjective, self-serving, and dumbass on its face, as was so well described by you.
5) Because the license is a chattel, the Bar also runs up against the Fifth Amendment. Prior decisions on this subject were erroneous and denied the clear language of the Amendment.
6) If an associate "must go" after repeatedly failing the Bar, it runs into the Contracts Clause and straight torts, as an intentional act, with the intentions you already discussed. Examplary damages may apply.
7) The Separation of Powers angle is ridiculous on the enforcement end, at the Disciplinary Counsel. A prosecutor (an executive officer) is employed by a court. Its pay comes from dues collected from the objects of its investigation. Its investigation are in accordance with Administrative law, back to an executive function. Its burden is "clear and convining" back to the judicial. A court writes the Rules of Conduct, a legislative function. The dues are collected by a private organization. The DC has refused to release a copy of its paycheck, with all identifiers blackened, except for the issuer. The issuer may be that private organization and the real employer. If the issuer is a private organization, the 11th Amendment may not apply. Any legislative authority does not reduce the outrages against the Constitution.
Please contact me in private if you desire more analysis. (You will face personal destruction, since bars get vicious against those going beyond words to action. No problem with the yakking we are doing here. I will never be a lawyer, so I can talk real big. You have some thinking to do if you are the least bit serious.)
Reluctantly, I must disagree with your conclusion that the bar exam should be abolished. This pains The Sardonic Lawyer, who prides himself on viewing most things created by lawyers with thinly-veiled contempt. Worse still is the fact that I must ultimately disagree even though you make some very cogent observations about the woeful failure of the bar exam to actually serve its self-professed purpose.
I suggest the bar exam can, under proper conditions, serve a salutary purpose. Specifically, the bar exam can (and should) exist to ensure that attorneys have at least a basic understanding of the law of the jurisdiction before being unleashed to inflict his or her practice in that jurisdiction. While under more ideal circumstances one could assert that graduation from an ABA-accredited law school can and should be sufficient assurance of minimal competency, the truth of the matter is that the ABA's imprimatur has little to do with the substantive education received by students at a given law school. More than anything else, the size of the library, admission standards for students, and curriculum vitae of the professors teaching at the school are what truly count, and little if any attention is actually paid to what is actually taught and tested.
Now, while I certainly agree with the criticism that taking a bar exam has more to do with test-taking ability than it does with suitability to practice law, the fault lies with its formulation rather than imposition. Yes, I agree the modern bar exam has more in common with a professional hazing ritual than an attempt to assure core competencies, but that too is merely a product of the insular society of bar examiners and our failure as a profession to demand that testing for admission to the profession be based on legitimate standards designed to evaluate relevant abilities.
As for your suggestion that the proper method for ensuring competent attorney work is punishing incompetence, I must admit that this idea is immensely appealing. However, given the miserable track record our profession has in policing its own (second arguably only to the medical profession, but that's another debate), The Sardonic Lawyer cannot endorse eschewing a dreadfully flawed but at least minimally operational approach to ensuring competence in favor of wholesale reliance on another system that is spectacularly ineffective in screening out all but the most egregious offenders.
As a Chicago law student, one often comes into contact with students/attorneys in bordering Wisconsin. There, students are licensed to practice upon graduation from an acredited WI law school. To my knowledge (admittedly, unresearched) the sky has not yet come crashing down, nor does my family in Wisconsin report substantially higher rates of incompetent attorneys.
Food for thought.
Sorry to use a public forum for a personal message but I am afraid I must. Mark Spottswood, it has been too long. Drop me an email and let me know how you are.
Thanks for your understanding