May 25, 2005
The Bar Exam
Posted by Christine Hurt

At Prawfsblawg, two different posts ponder the abolition of the bar exam:  here and here.  What neither of these posts acknowledge is that in two states, Wisconsin being one of them, the bar exam is a rare requirement.  For students who graduate from either Marquette or U. of Wisconsin (the two schools represented at this blog), they are automatically sworn in and licensed as attorneys.  Graduation was last Saturday, and this Monday graduates were practicing law. 

I wish that Wisconsin had a bar exam requirement, although that wish may be because other states do.  As Dan Solove pointed out, bar exams inhibit the movement of lawyers in and out of states.  Being almost the only state that does not require a bar exam has the reverse effect of inefficiently retaining and attracting lawyers to Wisconsin.  I think that the absence of a bar exam heavily weights in favor of our graduates staying in Wisconsin rather than venturing out and seeing the country.  Of course, Wisconsin has a lot to offer a lawyer, but so do other places.

The absence of a bar exam also shifts the role of "barrier to entry" back to the law school, which is not an easy role for law schools to play these days in the competitive law school market.  If either Marquette or Wisconsin took up the role of keeping 10% of all prospective attorneys out of the market, then we would find ourselves losing applicants.  (I am reminded here of the Enron "rank and yank" system, which does not do much for morale, either.)  I do think after being on the admissions committee, that we are fully aware that when we admit a student, we are basically admitting that student to the bar.

As noted on Prawfsblawg, lower tiered schools do have lower bar passage rates, so bar exams are providing a barrier function, whether we think that it is too low of a barrier or too high of one.  Generally, I am sympathetic to the argument that anyone who wants a legal education should have the opportunity to try, but I'm not sympathetic to the argument that anyone who wants to take full and irrevocable responsibility for a client's pressing legal problem should have the opportunity to try.

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