As officers of the court, lawyers are arguably members of the judicial branch. Lawyers engage in activities such as legislation, administrative rule-making, private contracting, dealing making, counseling and planning, mediation, arbitration and litigation. The essence of being a lawyer is normative ordering. However, lawyers are not the only professionals who participate in normative ordering. Members of the executive and legislative branches also engage in normative ordering, yet those branches require no formal educational requirements or examinations.
Before a person is even eligible to take the bar exam, he or she is required to graduate from an ABA accredited law school. After studying the law for three years and attaining a Juris Doctorate, there is one more hurdle to jump. A law graduate can’t practice law until he or she has passed the bar exam. Why is the judicial branch held to a higher standard than the other two branches?
The American Bar Association is an unelected special interest group which engages in political activity. The ABA regularly takes political positions, lobbies in legislatures and files amicus briefs in the courts. There appears to be a conflict of interest for the judiciary to continue to be influenced by the ABA in its supervision of the legal profession.
The cannons of judicial conduct contradicts itself by on one hand advising judges to refrain from political activity and on the other hand allowing judges to become members of the ABA. With limited exception, the legal profession is regulated entirely by the state judiciary. Judges are supposed to be neutral and unbiased. The influence which the ABA exerts over the judiciary is undemocratic.
In the early 20th century, bar associations became powerful in terms of shaping the legal profession. The ABA passed a resolution condemning admission without examination. Since then, most states have required the bar exam. What’s not commonly known is that prior to that, most states did not require the bar exam.
32 states as well as the District of Columbia offered the diploma privilege. Under the diploma privilege, lawyers could be admitted into the bar without taking a bar examination. It was once the dominate view that graduating from an accredited law institution was sufficient proof of competence to practice law. However, the diploma privilege began a gradual decline as the legal profession became more influenced by bar associations
The utility of bar exams has been questioned since their inception. In 1939, Dean Leon of Northwestern University’s School of law opined that bar examinations are not designed to test students’ training as lawyers. Leon continued saying that bar exams are inherently subjective and do not give applicants the opportunity to demonstrate their ability to solve everyday problems.
Bar exams are both overinclusive and underinclusive. Test-takers end up studying subjects that are either not tested on the exam or too much weight is given to subjects that are tested on the exam. The only way to know which subjects to study is to buy expensive study materials, namely Barbri. Those who can’t afford an updated Barbri course end up studying every subject and are at a huge disadvantage. Keep in mind that test subjects vary from state-to-state so a person would need to pay for a Barbri course for each state in which he or she hopes to become licensed. There are other expenses such as registration fees, laptop fees and background checks which put indigent applicants at a huge disadvantage.
Bar exams test rote memorization rather than legal competency. It is simply impossible to evaluate three years of intensive training on a three-day exam. Due to time limitations, only a few subjects can be tested. Bar examinations measure an individual’s test-taking ability and not much else.
Did you know that Charles Evans Hughes, former Chief Justice of the United States Supreme Court failed the bar exam seven times before finally passing? Did you know that Hillary Clinton also failed the bar exam? There are ample examples of Law Professors, Governors, Mayors, Attorney Generals, as well as Congressmen who have failed the bar exam on the first try. These people went on to do great things. Clearly, the bar exam was not an accurate assessment of their competency.
Donald E. Baumeister has failed the California bar exam 41 times over a period of 26 years. On one his attempts, Baumeister failed the bar exam by 3.7538 points. No one who wishes to be taken seriously would argue that 3.7538 points is enough to determine whether or not an attorney is competent enough to practice law
In the real world, no attorney is required to cite the law precisely without the benefit of consulting a book. There is absolutely no correlation between the bar exam and one’s ability to practice law. The bar exam does not test an individual’s skills as a practicing attorney; it only proves that someone is a good test-taker. The bar exam is simply a rite of passage; it’s means to an end. Within the legal community, the prevailing view is that “we had to go through it, so you must as well.” This view puts bar exams on the same level as any other form of hazing
The bar exam should be a minimum competency test. Anyone who isn’t incompetent should be allowed to practice law. The reality is that bar exams are competitive, focusing on memorization and elimination skills rather than clinical capacity. Two answers may be correct but one answer is considered more correct than the other answer. In a court room, no attorney is expected to answer 200 multiple choice questions and eight essay questions without the benefit of consulting books or notes. There is ample empirical data showing that there is no correlation between the bar exam and a lawyer’s competence to practice law. The bar exam has proven to be an expensive and unnecessary rite of passage.
In the past, some have tried to challenge the use of bar exams through the courts. The U.S. Supreme Court has held that there is no federal right to appear before state courts without meeting state bar requirements. In essence, the federal courts have dismissed these challenges because there is no material issue of federal law.
Ultimately, bar exams have to be repealed at the state level. More specifically, bar exams have to be repealed through the state political process and not through the courts. I am trying to get the bar exam repealed both in Texas and Oklahoma. I would like to get the issue put on the ballot in both states. If successful, the word will spread and attorneys in other states will generate petitions in their own states. I am looking for donors, organizers, volunteers and lobbyists. Hopefully, we can eventually get the bar exam repealed in all 50 states.
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