As an extremely petite woman, I generally make a point of not picking on any professional bodybuilders whom I happen to run across in the course of the day. One might think that I would therefore avoid criticizing a blog post by Richard Epstein. But sticks and stones can break my bones, whereas blogging can never hurt me that way, so here goes nothing.
Prominent author Elizabeth Wurtzel recently wrote a piece criticizing the bar exam as unnecessary. Wurtzel reportedly failed the exam multiple times, and her public persona has tended to come off as kind of flaky. See in particular the comments about 9/11 as "strange art project" and thinking that if she had been a lawyer after the attacks, she would have known what to do. (Really? Did she not notice that most lawyers were every bit as clueless in the face of unexpected terrorist attacks as the rest of us?) So, yes, maybe she is not the best standard bearer for the anti bar exam movement. I refer interested readers to my Ilya's post for perhaps more coherent arguments against the exam.
Anyway, this prompted Richard Epstein to weigh in with the above-linked post titled "The Bar Exam Isn't Senseless, And Neither is Law." In particular, he takes issue with Wurtzel's assertion that students from Yale who failed the bar were characterized by a "complete inability to comply with senseless rules." Epstein writes in response, "Indeed the insistence that intelligent students can deal with rules that make 'neither financial or intellectual sense' gets it exactly backwards. I am never hired to explain rules that everyone understands. I work in areas that make no financial or intellectual sense, where the herculean task is to put some order in a tiny corner of the overall situation."
If I'm understanding Epstein's argument correctly, though, it's almost the opposite of his title: the bar exam is senseless, precisely because law itself is senseless. I agree wholeheartedly that much of law makes neither financial nor intellectual sense; I admire Epstein as a scholar, and have enjoyed reading his work, precisely because he's so good at illustrating this very point. But forcing people to take a senseless exam about a discipline that is senseless itself is tantamount to arguing that two wrongs make a right. The existence of the exam -- and the other licensing rituals that lawyers must pass through -- gives our merry guild every incentive to make sure that the system stays as complicated and as senseless as possible so that we continue to get rich trying to explain the senselessness to the rest of the world.
The point is precisely that law ought not to be complex or senseless. While senseless complexity benefits us, it hurts thousands of small business owners struggling to figure out what their legal obligations are. It hurts poor folks who want to get a simple divorce and don't want to pony up $500 for even a cheap private firm. Epstein's right that eliminating the exam won't totally solve the problem. But it would at least lower the price of lawyers for those who need them most. It would at least, on net, decrease the overall amount of senselessness in the system.
Note that also, if the exam were really useful at signaling something that other facets of a lawyer's resume didn't, you could just make sitting for the exam voluntary. Who knows, maybe firms would flock to hire only "Virginia Bar Exam Qualified" lawyers or the equivalent from other states.