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Every year, thousands of recent law school graduates spend their summer studying crazily for and then taking--perhaps also crazily--the bar exam. A rite of passage for newly minted JDs across the country, the bar exam is the barrier to entry for the legal profession. But why? Does the bar exam test wannabe lawyers on things they will need to know--and use--in their careers? Professors John Yoo of UC Berkeley School of Law and Richard Epstein of NYU School of Lawspoke with Glenn Reynolds of PJTV about the bar exam and its relationship to law school and legal education in "Lowering the Bar: Is Law School Becoming a Fool's Errand?"
"Surely operates as a barrier to entry, otherwise established lawyers wouldn't care much about it," Says Epstein. "Is it a dumb barrier to entry? Or is it a barrier to entry that bears some relationship to what it is that students ought to know on the bar or when they practice law?" "I don't see really much connection between how you're going to do as a lawyer and whether you pass the bar at all," answers Yoo. "When you have tryouts for a football team and you want to see who might be a good player, you make all the players crawl through the mud, just to see that they have the determination to crawl through the mud, they want to play so bad that they'll do anything. I think the same thing with the bar. People just study for the bar, they pass it. It's really just to show they've got determination and effort just to pass a bar, but doesn't have a lot to do with showing who's going to be a good lawyer."
Critics of the bar exam (including Epstein and Yoo) say that the exam is both too broad and too specific. The exam is administered by individual states, so federal law (the importance of which has increased in recent years) is "just ignored" according to Epstein. At the same time, lawyers today are "extreme specialists" and not the "jack-of-all-trades" they used to be; thus, they do not need to know many of the topics tested on the exam.
Since the bar exam doesn't seem to have much relation to the practice of law, perhaps it does to legal education. Does the bar exam keep law school from becoming too academic? Preserving law school as a vocational school? That would be "too optimistic," says Epstein, though there is more attention paid to the exam at lower ranked schools. "There are, particularly when you go down the hierarchy, immense pressures on the part from students to make sure that they have the set of skills that they think that law firms will want them to have," says Epstein. "At the more advanced law schools—or the higher ranking law schools—we tend not to teach to the bar very much, but tend to do exactly the kind of academic thing you're talking about. So we don't study the re-statement, we study the theory of efficient breach when we're talking about contracts, and rely on the bar review courses to get them through." Yoo agrees. "If it were true that these law schools were grounded in some reality, then why are all these bar prep courses out there, which charge outrageous sums of money to basically cram students full of the information they need to pass the bar in the two weeks or three weeks right before the bar," he explains. "They're the ones that are really preparing students for the bar exam. So I think it's much less so the law schools."
If the bar exam isn't keeping anyone in line--law schools or lawyers--then what purpose does it serve other than to prove you want to be a lawyer bad enough? Perhaps none. But who are we to say that that's not enough? Moreover, given the number of wannabe lawyers out there, a crazy-difficult barrier to entry to the professional that tests how badly they want it isn't necessarily a bad thing.
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