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December 5, 2005
Law Professors and the Bar Exam
There's an interesting article in the W$J today: Raising the Bar: Even Top Lawyers Fail California Exam. I guess it's news because Kathleen Sullivan (Constitutional Law Superstar and former Dean at Stanford) failed the California Bar Exam.
Over at Concurring Opinions, Prof. Solove has a good response, Abolish the Bar, in which he raises some very good points about why the bar exam is a poor means for ensuring quality lawyers.
However, given that for the time being the bar exam is a reality of practicing law, this post by Prof. Horwitz at PrawfsBlawg caught my eye. Prof. Horowitz mentions that he hasn't taken the California Bar Exam, in spite of having moved to California. Which leads me to my question: shouldn't he?
I'm not singling out Prof. Horowitz; there are many faculty members at many schools who haven't taken the bar in the state where they teach. Many are very fine members of the faculty. There are good reasons for not taking the bar for academics--career mobility, the nature of specialization in legal scholarship, etc.
However, part of the roll of an educator at any law school is to prepare students for the practice of law. In the current reality, that practice includes the bar exam. Therefore, don't they have a responsibility to take and pass the bar exam in the state where they teach?
Obviously, it's possible to know the material on the bar exam without having taken it or passed it; I would guess most professors have taken the exam somewhere. There is a valid argument that a professor teaching at a top 10 school, where most students will leave the state to practice anyway, would not be in a better position to train students for the bar exam in some remote state. There's also an argument to be made for reciprocity; if a state is willing to grant reciprocity, why should a faculty member re-take the bar exam for a career move? Perhaps they shouldn't. But I think there is an argument that they should.
I do not think schools should "teach to the exam". I'm sure that lowers quality on many levels. However, the reality is that the vast majority of faculty teach at Tier 2-4 schools which means the average student is less likely to become a constitutional scholar and much more likely to practice divorce or bankruptcy in the same state in which they are being educated. To this majority of law students, the bar exam is a very important aspect of their legal training and career. In order to get the best possible education shouldn't the faculty who are teaching them have first hand knowledge (i.e. take) of the exam for themselves?
Posted by Dave!
3 Comments
I appreciate the thoughtful comment and I don't take it personally; I appreciate that you're not singling me out. Let me offer a couple of reactions. I think you already acknowledge that most law professors (including me) have taken the bar somewhere, and thus that they may already be equipped for the practice of law, and to teach in a way that is relevant to the practice of law (and I also practiced at a firm before entering teaching, as many others have). So that already picks up most of the slack. The remaining piece of it is, should law professors at a law school have practiced in and/or taken the bar of that state? And to this I think that at most the answer is that some faculty should have, which is indeed the case at most schools (including ours), but it's not clear to me, all things considered, that all of them should. I would also point out that even if knowledge of the bar exam in that state is useful, it's not clear that transmission of practical knowledge about the state bar exam should come through the regular teaching faculty rather than through alternate means of transmitting that information; and it's also the case in any event that schools and faculty have other means of access to relevant information about the local state bar whether or not they have taken that state's bar. So, long story short, I think your question is an interesting one but would suggest, as your own very reasonable post indicates, that there is relatively little to argue for any sort of absolute rule, and I think any more limited rule is already met by the practices of most law schools (including mine).
Best,
Paul Horwitz
My "thoughtful" friend forwarded me the article today, and needless to say, I was not pleased for the reaons below:
1. Jittery nerves. I'm about to take my first law school exam. The last thing I need is bad news.
2. Lowers morale. I mean, what's the point of working so hard if bright ppl can't even pass the exam?
Shell:
Actually, it shows that the Bar Exam is broken, more than anything.
Learning to pass the Bar Exam isn't really learning the law... It's learning to pass the bar exam. Don't worry, you'll do fine. People over-hype how bad exams are to make other people nervous. They really aren't that bad... I have no doubt you'll be A-OK!