The Bar that Broke the Legal Profession’s Back
An Open Letter to New Law Graduates
An age-old irritant is redefining an industry
Watching the drama unfold around the summer bar exam has been like watching a slow-motion train derailment. Except instead of the scene being some far away, abstract crash, in this vision each train car is right in front of your eyes and in it you can see the faces and hear the screams of an entire generation of an industry. And it just happens to be the generation we’re relying on to save us in the future.
It’s been so hard to watch these last few months that for the first time since becoming a lawyer, I find myself ashamed to be part of this profession. Daydreams of creating a just and efficient legal system have been replaced by increasingly frequent fantasies of shredding my bar card, lighting it on fire, flushing it down a clogged toilet, and never looking back.
And all of this over a standardized test that I’ve dedicated countless hours to taking — twice — but that I never questioned long enough to consider the problems that we are now imposing on a new generation.
Discontent over the bar exam is probably as old as the exam itself
Most attorneys in this country have gone through this hazing ritual masquerading as a licensure exam.
It consists of studying full-time for months, spending thousands you don’t have on bar prep courses to learn years of content you didn’t study in law school, and then betting the future of your career on a two-day, closed-book test in a stuffy furniture mart somewhere off a major highway outside a major city.
Because that is definitely what practicing law entails.
I think Joe Patrice was fairly accurate when he described the exam as follows:
The bar exam as a concept is little more than professional cosplay for [bar examiners]. It is not, in fact, a courtroom or an office or a client meeting. It is not demonstrably useful in protecting the public because it, by design, fails to test applicants on the actual subject material relevant to their future practices (unlike, say, a series of practice area competency exams people could opt into to earn narrowly tailored certificates). It’s just a game where they make applicants dress up and play law school trivia.
The shared experience of taking the exam is probably part of the reason lawyers gravitate together at cocktail parties. It’s like we’re trauma bonded by the pointless torture of this exercise. This shared experience is also probably the main reason industry leaders cling to the exam despite no evidence it tests what it is supposed to be testing (minimum competence) and despite all evidence that in this environment millions need legal help.
I’m not necessarily saying the exam is pointless — I probably will, though, later— but one of the first things I heard from a professor in law school is that we’re only required to take the bar exam because everyone else before us took it.
That says so much about the law.
Throw high-court decision making into the Covid-19 dumpster fire
The pandemic, as it has a way of doing with everything, moved the bar exam into an entirely new light and started forcing us to ask (and answer) the questions that we should have been facing decades ago.
The foundational questions at play here, of course, are whether there should be an exam at all and, if so, what that test should look and feel like if it is really designed to detect competence. But this is not what gets me the most animated.
What absolutely infuriates me is the question that never should have been asked in the first instance — and that is whether we should put people’s lives and careers in jeopardy in the middle of a global pandemic and economic meltdown over the empirically shallow exercise that is the bar exam.
That most states have asked and answered that question “yes” is just gross.
It’s bad enough that state high courts and bar examiners even entertained the nightmarish scenario of having hundreds of law students come together and take a two-day in-person exam in a global pandemic. The fact that some, including my own, went so far as to produce that horror movie is cause for litigation if I’ve ever seen one.
But I’ll save the precious remaining outrage for the effort to hold these entities responsible for putting lives in danger, because that is the natural consequence of what our industry “leaders” have done.
The anger, though, extends beyond the plight of the in-person test taker. You can’t throw a Tweet these days without seeing a law student talking about software issues, facial recognition challenges with exam AI and BIPOC, discrimination against test takers with disabilities, or last-minute scheduling changes that are poorly communicated and have real financial implications.
Many of these issues are not new to this year’s bar exam. Discrimination against women and BIPOC, people with disabilities, and low-income test takers has been baked into bar testing procedures for decades. But the rush decisions that examiners are making as they scramble between poorly thought-out or non-existent contingency plans are not these leaders doing their best in a very challenging situation.
No. This is industry leaders disregarding common sense and ignoring the implications of their emergency policies on the safety, health, and careers of these test takers. This is industry leaders dogmatically sticking to “doing things the way we’ve always done them.” And they can do this and feel good about themselves because they are so out of touch with the issues facing both test takers and the public.
*This* is the fundamental problem that Becoming a Lawyer in the Time of Coronavirus is highlighting in devastating detail.
The tone-deaf tiers of the judicial and legal elites
Beyond the immediate disgust and pervasive anxiety over how we are treating our new law grads, I am deeply concerned with how deeply removed from reality many of our industry leaders are proving to be.
Earlier this summer in Louisiana, one of the justices openly questioned the seriousness of the public health issue posed by the pandemic. As reported in The Volokh Conspiracy, Justice Hughes called the request for diploma privilege before the court “an overreaction, to the earlier overreaction to the virus, whereby the scheduled July bar examination was canceled.”
Meanwhile, outside the privileged ivory halls of a white, male Supreme Court justice, Louisiana at that time was the only state in the nation experiencing two devastating spikes of the virus.
His colleague, Justice Crain, asked: “where is this ‘emergency’ to admit over 500 new lawyers to practice law without testing minimal competency?” Yet just a few days prior to his writing that, the state’s coronavirus rental assistance program had been suspended — after just 4 days — due to overwhelming demand.
This callous disconnect between what is happening to us normal folk and what is happening in the lives of the legal elite isn’t unique to the bar exam. We hear a similar tone-deaf tune with industry leaders’ repeat ignorance around the reality of self-represented litigation in state courts. But it is being laid to bare here in an unprecedented way because we are dealing with issues of public health and economic insecurity that few of those in our industry’s leadership ranks have had to grapple with apart, let alone together and in the same awful year.
A generation that has never been more important to an industry
It is nearly impossible to put any more pressure on new law graduates than they are already experiencing. But I’m going to anyway.
We need you. Our profession needs you. Our industry is stuck in the past and our opportunities are being crushed under the weight of the generations before us. We are stuck in a spin cycle of “what we’ve always done before.” I no longer want any part of that.
Be safe, and get to the other side. With you, the future of the profession is bright, but we’re going to need to light the torch off the moving dumpster fire that is 2020. Get through the bar exam, and then light it on fire.
