Former student Chris Schreiber alerted me to this commentary by Doug Kern suggesting that "the public decide who should and should not practice law." Kern has harsh words for law schools:

After dropping as much as $100,000 and spending three years obtaining a law degree, you probably don't know enough law to practice it professionally; most law school graduates don't. Now perhaps you're wondering: if the point of law school was not to prepare you for the practice of law, just what was the point of law school? Easy: the point of law school was to make money for the law school. Mission accomplished! Oh, and as a secondary matter, the point of law school was to flatter the egos and delusions of the brainiacs who teach there. And that, young law school graduate, is why you can pontificate at endless length on theories of critical legal deconstructionist realism as touching upon Marxist feminist radical queer Afro-Latino post-structural comparative gender issues, but you still can't write a damn will.

This is a sentiment often expressed by recent graduates, and I won't take the time to respond in this post, because I am more interested in Kern's take on the bar exam.

Here is part of the author's extended tirade against the bar exam:

I memorized trivia from a dozen different legal subjects, puked out my knowledge in a hot Columbus meeting hall, and passed the bar exam. And I still couldn't write a will. In principle, the case for certifying lawyers seems as plausible as the case for certifying any other profession. Just as you wouldn't want some Dr. Nick Riviera with a rubber-stamped medical degree carving out your appendix with hedge trimmers, so you wouldn't want some polyester-clad Lionel Hutz with a mail-order law degree and a head full of pine cones defending your DUI case. But do bar exams really weed out the dull and ignorant? The pass rates for bar exams range from 55% (California) to 85% and higher (Utah) -- not exactly Olympic-level competition. And there's no limit to the number of times a law school graduate can sit for bar exams. Any law school graduate without an untreated head wound will pass some bar exam somewhere after enough tries. Unlike scruples and honesty, dullness and ignorance are no impediments to the practice of law. (Humor, young lawyer padawan! Humor will keep the tort reformers at bay!)

Bar exams only test your ability to ingest and regurgitate legal information under stressful conditions. Admittedly, it takes at least a modicum of brains, motivation, and legal knowledge in order to pass. But no legal problem presents itself with multiple-choice answers, and few legal briefs are handwritten in twelve minutes or less. Given the innumerable different problems that lawyers confront, and given the myriad legal specialties that have arisen to resolve those problems, the idea of a single test for all prospective lawyers seems increasingly bizarre.

While I am sympathetic to some of Kern's points, his solution -- let the market take care of quality control -- is simply reflexive. Market forces currently exert pressure on lawyers, but only after they have traversed the bar examination. The only effect of eliminating this licensing process is to lower barriers to entry. If we were concerned about having too few lawyers, this might be a sensible solution, but how does it help improve lawyer quality? Will eliminating the bar exam help Mr. Kern learn how to draft a will? Of course not.

If we were really serious about lawyer quality, we might implement something like the German apprenticeship system. Two years spent rotating through various practice areas for the pay awarded someone working in the administrative staff. (Of course, Germans study law as undergraduates prior to this apprenticeship, so they are working as apprentices at an age when many Americans are still slogging through law school.)

No, I am not advocating an apprenticeship, even if it would improve the quality of young lawyers. I also don't mean to defend too strongly the system of state bar exams that exists in the U.S. One of my German students is interested in practicing in the U.S., and attempting to explain a state-based regulatory system in the modern U.S. economy was a challenge. It makes sense as an artifact of earlier days, when the practice of law for most was purely local, but I do not see much value in it today.

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