Wednesday, January 04, 2006

Is the Bar predictive of legal brilliance?

(Photo fromlawschool.handong.edu)

Many of you probably aren't familiar with the name Kathleen Sullivan. Ms. Sullivan is the former dean of the Stanford Law School, which is ranked third among the United States's best law schools (behind Yale and Harvard). Among her many achievements include being a fellow of the American Academy of Arts and Sciences and being highly respected as a Constitutional scholar. She also distinguished herself as a Marshall Scholar at Oxford University.

Obviously Ms. Sullivan is a lawyer of high caliber and practices the profession well. In legal circles, her name is practically a household word; every lawyer knows her name. Her legal brilliance is undisputed.

There lies a little problem: She failed the 2005 California Bar exams.

Ms. Sullivan is licensed to practice law in New York and in Massachusetts, but as she accepted an offer to practice with a Los Angeles-based firm, she took the California Bar exams last July. The exam tested out-of-state practitioners such as Ms. Sullivan wanting to practice in California.

The California Bar exams are notorious for being tough. This year's passing rate was a dismal 28 percent. Rumors have been aswirl for years that the exams were designed to keep out-of-state lawyers out of California. Considering the passing rate, it's not too far-fetched.

Comments on Volokh referring to this post on the high Bar exam failure rate for graduates of Denver University's Sturm College of Law have been, for the most part, full of critique and insight. Some have said that there is no strong link connecting lawyering skills to bar exam results, with others reinforcing that by saying general intelligence seems more predictive.

SR posits:
The Bar exam does not test the ability to practice law, nor even the minimal competence to practice law. Robert MacCrate, in a report for the ABA that is considered the most authoritative study of the subject of the skills necessary to be a competent lawyer, found 10 skills that are fundamental to good lawyering. (excerpts of the report are online here) He notes that the Bar exam tested only two of those skills...A rich literature of studies has grown that shows that performance on the Bar exam is most correlated to performance on law school exams, as well as the LSAT, rather than to any real world measure of the ability to practice law. For this reason it is no surprise that accomplished lawyers like the former dean of Stanford would fail the Bar.

Many of the commentators here seem to uncritically accept the notion that law students who do better on exams that stress memorization and time pressures will do better in a profession that stresses research and due diligence. The assumption has no basis in reality.
Pooh echoes this by saying that the Bar exam measures mostly one's ability to take the exam itself.

John Jenkins, though, says:
Given the system we have, students who want to be lawyers have to pass the bar exam in their state to do that. If you have a reliable predictor of bar passage and you ignore it, then you are doing a disservice to your students (at least those who want to be lawyers). The question presented has nothing to do with the utility of the bar exam as such. Given that the general feeling is that law school (1) doesn't prepare you to pass the bar and (2) doesn't prepare you to practice law, it seems plain that DU is doing SOMETHING wrong (along with most other schools).
Your thoughts are welcome to this non-lawyer.

3 Comments:

Blogger jillsabs said...

The bar is one of the most unfair gauge of the legal profession, IMHO.

With the volumes of laws and jurisprudence to be pored over just for that exam and the sad fact that only about 5% of what you actually studied will come out, it's just not a suitable yardstick.

But whoever said that the law was fair? :p

9:23 PM  
Blogger sarah said...

The bar does not a great lawyer make? =P If the bar doesn't test what you actually study, isn't there a gap between what law school professes to do and what it does in actuality? Or maybe I'm just rambling.

Thanks for your input, Jill.

1:42 AM  
Blogger Penny Lane said...

totally unrelated to your post and long overdue.... happy new year sarah! mwah! :)

6:31 PM  

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