Wednesday, July 14, 2010

The bar exam is senseless precisely because law is.

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.


  1. I'm anti-bar exam, but getting rid of it is unlikely to have much of an effect on the price of legal services. The vast majority of people pass the bar on their first try, and most of the rest pass on subsequent tries. Perhaps I'm misinformed, but I think very few go through law school and then never practice law solely because they could not pass the bar. Supply would not change that much then, so neither would price.

    The real reason to get rid of the bar is (1) it is of dubious value for judging one's competence to practice law, and (2) it's just a payout to the test prep companies and state bars. The real rent seekers are these groups, not lawyers as a whole.

    Moreover, consider that it might be good from an individual perspective but harmful from a social perspective for legal fees to be lower. Most people think we are already too litigious as a society. Decreasing the price will increase demand for such services, making society worse-off as even more frivolous lawsuits flood the courts.

    Finally, consider that "inflated" prices of legal services might reflect a sort of "hazard pay" premium. Practicing law is usually difficult, stressful, and often requires long hours. Most lawyers are not very happy with their career choice. So, in return for doing important but unpleasant work, they get a premium. Kind of like blue collar workers that perform dangerous jobs get a premium over similarly skilled workers who do administrative work in (safe) offices. I think there's way too much Econ 101 reasoning about the law "cartel" amongst libertarians (btw I'm a classical liberal myself). I suppose if you're a hardcore natural rights libertarian who thinks you have a natural right to practice law without taking a bar exam or going to law school, well, none of this matters. But for consequentialist libertarians, I think we have to take a closer look at the far too simple arguments bandied about against licensing for lawyers.

  2. I think the practice of law, like most other professions, could be a great deal more open, but with the caveat that we will hold anyone who holds themselves out as a lawyer (or other professional) to the professional standards of a licensed/trained practitioner of that profession. There is already some precedent for this: for example, in Illinois, real estate agents are allowed to give some kinds of legal advice regarding real estate transactions. However, they almost always refuse to do this, because if they do, they are held to the standard of care of a *lawyer.* They can be sued for legal malpractice if they mess up, and since they don't carry malpractice insurance, the consequences could be catastrophic.

    I know non-lawyers who, for some given fields of legal art, are as competent as any lawyer and more so than most. If they want to give legal advice, that's fine by me. But they have to face the same consequences I do if I screw up, and they probably should at least be required to disclose that they aren't licensed attorneys (to give the consumer that important information to allow informed choice.)