As mentioned on Concurring Opinions, Prof. Daniel Solove puts on his book reviewer beret to look at "The Multistate Bar Exam as a Theory of Law." The paper is posted on SSRN and will be published in the Michigan Law Review. It's short, mildly amusing and has a couple bits of information that I hadn't known, like that the MBE thinks burglaries can take place only at night. Pointing up more peculiarites like this would have made the review more biting: If law school doesn't teach us black letter law because it's not intellectually challenging*, and the bar review course doesn't teach us black letter law because the bar exam doesn't use it, then when will we learn it?
Alternatively, if Solove wanted to maintain his conceit of the book review with many citations to legal theorists, he should have invoked the insights of critical legal theorists. The anecdotal nature of the bar exam could be compared with the work of leading crits like Patricia Williams, who "uses stories -- from her own life, those she hears from friends and relatives, and those she reads in the news -- to personalize and contextualize the social, political and legal structures that we encounter in our lives." Yet the propounding of social change that appears to go hand-in-hand with CLT simultaneously contradicts the conclusion Solove draws of the Bar Exam's perspective:
The Bar Exam seems to be saying: “Here’s the law. It helps some people. It helps other people. And that’s it.” Questions such as whether the rules are just or whether or not they should be changed don’t matter. According to the Bar Exam, the law is, and there’s nothing else worth saying.Heads up to the Article Editor responsible for Solove's piece: "Another reason I did not undertake a more systematic study of other bar exams was because each sample exam costs $15, and I was doubtful that my dean would offer me the funding for such promising research." Sorry, it's one of my peeves.
* At a margarita-fueled lunch the other day, a couple of 3Ls declared their intention never to give money to the law school until it promised to endow a black letter law professorship.