Straw arguments are notoriously dangerous at keeping off a superb rhetorical beating, which is why it’s so bizarre to see one maintain up so well to scrutiny.
To be honest, GW’s Professor Roger Schechter makes some good points in his current Bloomberg Law article “Let’s Not Toss Out the Bar Exam Just Yet.” So I assume I’m saying “let’s not toss out this article just yet.” But nonetheless, the article contextualizes itself round a flawed premise. It’s a superb primer on why the quick abolition of the bar examination adopted by no additional licensing reform can be a nasty coverage.
But nobody is actually saying that.
Bypassing the broader reform proposals floating round, the polemic grounds itself in the concept reform is myopically tied to bar examination abolition, Professor Schechter inadvertently makes a compelling argument for complete licensing reform. And, sure, a mannequin that might get rid of the bar examination as we all know it.
But earlier than we get to his two details, let’s simply take a second to soak this in:
Moreover, the authorized guidelines examined on the bar examination will not be obscure or arcane points of legislation. Rather they replicate core data with which each and every lawyer ought to be acquainted, simply as each physician ought to be accustomed to fundamental anatomy and each accountant ought to be capable to learn a steadiness sheet.
In over a decade of personal follow, I by no means as soon as wanted to deploy the Rule Against Perpetuities. Nor did business paper come up. Holographic wills had been each much less badass because the title implied and wholly irrelevant to my day-to-day follow. The bar examination could not check “obscure or arcane points of law” for all candidates, nevertheless it definitely checks obscure or arcane points of legislation for particular candidates. If you wished to place the mislead this comparability to medical doctors being “familiar with basic anatomy” go forward and require each 20-year ERISA companion to move a check on Family Law yearly. See how that flies.
Putting apart the nonsense of this premise taken to its excessive, there may be an attention-grabbing level concerning the examination filling in academic gaps:
Of course it takes effort to organize for the examination. It was not too long ago argued in an Insight that the bar examination is “fundamentally unfair” to newly minted J.D.’s who should “put their life on hold” whereas finding out for the bar examination. That grievance, nevertheless, assumes the very situation under dialog, specifically that the bar examination serves no helpful objective.
For many, the seven or eight weeks of bar research fills essential gaps of their authorized data, gaps that usually exist as a result of self-indulgent college members have did not cowl fundamental ideas in favor of extra arcane idea. One might simply as simply say that legislation college students should “put their life on hold” whereas going to legislation faculty.
Well, one might “just as easily” say that if one assumed that BARBRI conveys the total spectrum of vital authorized data over the course of a summer time, which raises the totally separate query of whether or not we ought to be going again to the roots of the bar examination and never require legislation faculty in any respect. Make everybody be a Kardashian! That looks as if a nasty thought to me, nevertheless it will get to the crux of the damaged belt and suspenders approach of the established order: the bar examination was designed for a world with out professionalized legislation colleges. Have a bar examination mannequin or a legislation faculty mannequin — why each? Oh… because the ABA specifically wanted to keep out minorities.
Also, that’s the second “arcane” of this text. Someone’s utilizing their D&D thesaurus.
Bar examiners will probably be fast to say the examination doesn’t check authorized data however strategies of authorized evaluation. In reality, NCBE personnel recently wrote an article about bias what place they assert explicitly that their examination will not be based mostly on authorized data:
To be certain that profitable efficiency will not be confounded by an examinee’s data of substantive legislation, examinees are supplied with a case file and library that embody all substantive data vital to finish the evaluation activity.
In any occasion, if the examination is educating authorized ideas (NCBE says it’s not) which might be essential to any follow (the lived experience of attorneys says it’s not), that is an argument for legislation faculty accreditation reform, not an argument to maintain licensing tied to an examination of doubtful worth in terms of conveying authorized data. Crack down on legislation faculty efficiency, situation new curriculum mandates, have a severe dialog about restricted follow space certification — these are all concepts reform advocates have floated and argue about amongst themselves. That’s the dialog, not “eliminate the bar exam and throw up our hands.”
Even although legislation faculty reform would appear the logical response to this situation, it appears he has a special axe to grind in terms of authorized schooling:
Nationally, in every of the previous multiple years, about one in five J.D. grads has failed the bar examination on their first attempt, and about 12% of test-takers can’t get previous the examination even after a number of makes an attempt. These college students make it via legislation faculty with, in my view, a substantial amount of college and administrative hand-holding, even handed course choice, and a lift from grade inflation.
First of all, that’s not how bar exams are graded. But extra importantly, he presents this as if poor bar performances are equally distributed throughout legislation colleges and it’s simply these hippie legislation professors serving to ill-prepared college students get via. In actuality, the majority of poor performances come from the same old suspects of lowly ranked legislation colleges. Schools what place the phrase “diploma mill” is harsh however not totally inaccurate. That’s not a matter of outlier college, however a philosophical resolution by questionable actors in authorized schooling.
Right now, with state licensing companies farming out accrediting work to the ABA we have now an company largely incapable of holding colleges accountable lest right-wing lawyers sue the organization for demanding higher standards. If lawyer licensing had been extra instantly tied to legislation faculty accreditation we might put some enamel into this course of and massively curtail the variety of candidates who don’t meet the vaguely outlined “minimum competency” for follow.
And that is what place the entire argument goes off the rails:
Just as essential as its position in screening out the unqualified, the bar examination is a vital constraint on the worst impulses of legislation colleges. Law colleges are often tuition dependent and there’s a fixed give attention to the underside line. Surely some colleges can be tempted to confess much more woefully unprepared college students to reap extra tuition in a world what place they didn’t have to fret about bar examination move charges.
Law colleges are admitting woefully unprepared college students to reap extra custom proper now. The bar examination isn’t a examine on this follow, it’s the inexperienced mild for it. Law colleges fortunately throw college students $200Okay into debt after which wash their hands as they dump their graduates off on bar evaluation professionals. Note that whereas bar prep corporations would possibly supply refunds for failing the examination, legislation colleges definitely don’t. We have legislation colleges on the market which have been allowed to function for years with roughly half of all grads failing the exam. When they get in monetary hassle they get bailed out as a result of there are remarkably few penalties right here.
How might eliminating the bar examination make it any worse? More importantly, when one considers that complete accreditation reform would run hand-in-hand with any licensing change that might get rid of the bar examination, how might it do something however enhance the scenario?
But again to his axe grinding about 3Ls taking “Law and Rodeo Clowning” or one thing:
Faculty would additionally don’t have any exterior self-discipline with regard to curriculum. Many tenured legislation professors would much quite train seminars of their areas of analysis than plow via a survey course in prison legislation or property. Even what place colleges continued to supply the course that now comprise the essential first-year curriculum, the protection would differ wildly from faculty to the school.
Again, that is one thing taking place proper now. He admits that professors are educating tangential programs in the established order bar examination world. What is it a couple of one-time weighted, generalist examination on the again finish that places professors in examine? An iterative grading course of over the course of three years (or… possibly it might be two?)
All the bar examination does is defer duty for authorized schooling. The legislation faculty is free to show no matter it needs, free to blow off sensible expertise, and free to pocket tuition no matter final result (assuming it’s not vying for a high rating).
You don’t repair rotting wood with ugly wallpaper and also you undoubtedly don’t then justify the wallpaper by saying, “Sure it’s ugly, but otherwise you’d see the holes in the wall.”
There are legitimate criticisms of legislation colleges in right here. Let’s not throw these out with the proverbial poisonous tub water. But that’s additionally why diploma privilege advocates discuss legislation faculty reform. It’s not only one factor.
Let’s Not Toss Out the Bar Exam Just Yet [Bloomberg Law]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any ideas, questions, or feedback. Follow him on Twitter for those who’re interested by legislation, politics, and a wholesome dose of school sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.