March 21, 2007
Another Call For Bar Reform
Posted by Seth Chandler

How can it possibly be that in 2007, bar licensing authorities persist in hurting business and hurting the public by not requiring lawyers to know essentially anything about federal statutory law? Here is a list of subjects about which one basically needs to know nothing in order to practice law in almost every United States jurisdiction: (1) administrative law; (2) antitrust; (3) civil rights law (1983, ADA, etc.), (4) environmental law (Clean Air, Clear Water, Endangered Species, CERCLA, OSHA, etc.); (5) Health Law (ERISA, HIPAA, COBRA, Medicare, Medicaid); (6) immigration law; (7) intellectual property law (copyright, patents, trademarks); (8) labor law (NLRA); (9) maritime law. Some states require virtually no knowledge of tax or bankruptcy.

And I can hear the excuses coming. (A) These are things lawyers will pick up in practice. (B) We can’t require students emerging from law school to know everything. (C) Once we open the Pandora’s Box there’s no non-arbitrary way to select from amongst the massive set of federal statutes. (D) Statutory law changes too frequently to make it a sensible subject of bar examinations designed for lifetime entry into the profession. (E) Imposing more barriers to entry of the legal profession would raise the cost of legal services or somehow reduce already-low diversity in the profession.

I’m sorry, but I just don’t buy any of it. If we’re going to use a licensure system as opposed to a certification system, we ought be licensing on the basis of relevant criteria. The current system of emphasizing the minutiae of contingent remainders, hearsay exceptions or secured creditors claims to proceeds, fascinating though these topics may indeed be, distorts the interaction amongst law schools and their students in the production of a curriculum. It ends up disabling lawyers in an embarrassing way from helping a large segments of the population and of businesses with contemporary problems. The fact that law schools are now explicitly and visibly rated on bar passage rates amplifies the curricular distortion.

This is a serious cost. Most of the graduates of my law school and of most others would have to go up a steep learning curve to help a client with the refusal of an employer welfare benefit plan to authorize medical care, help a client who wants to set up a web site that incorporates external material, give tax advice to a client wanting to name their estate as the beneficiary of a life insurance policy, advise a business wishing to purchase real estate in an area with toxic waste, handle the review of an administrative decision, help a 60 year old who says they’ve been fired because of their age, advise a business seeking to merge with a competitor, address the rights of a nine-year old placed in prison because of his parents' immigration violations. Worse yet, unless they received education outside of law school, some lawyers wouldn’t even know there were federal statutes and regulations that might address most of the above matters and so wouldn’t even start the ascent.

To be sure, some lawyers will pick this stuff up in practice and some of these areas do require specialization in order to achieve mastery. But I would bet a large sum of money on the proposition that more clients encounter problems with their employee benefit plans than with the rule against perpetuities and yet we don’t create dependency on firm culture with respect to the latter topics in order to practice effectively. To be sure, the skills students learn in law school should make their ascent of any of these topics mildly easier than if they’d had no formal legal training at all, but the substitution of some of the currently ignored federal and largely statutory areas for some of the esoteric common law topics now tested would only broaden the skill base of students by exposing them to the complex legal codes that are now pervasive. Yes, we might have to pick a subset of federal statutes and perhaps arbitrarily label them as more important than others, but surely the resulting irrationality would be less than the current system. And a few survey courses in law school designed to cover broad areas, thought they might [gasp] require sacrifice of the sainted Socratic Method in favor of tedious lecture or other more directive pedagogy, would at least alert students to a broader spectrum of the set of rules that potentially address their clients’ problems. Moreover, while setting different standards might create some transitional issues as law schools and students reached a new curricular equilibrium, in the long run it would increase entry into the profession and improve professional mobility by permitting licensure standards to reflect the extent of federally created homogeneity that now hangs over much of the practice of law throughout the United States. And, with respect to the mutability of statutory law, yes, it’s true, but does anyone in 2007 think that IP or environmental law is a fad? The half life of a lot of these statutes is likely to be a pretty long time.

So, that’s another rant on the subject. When I made a similar (though admittedly briefer) comment at a conference on reform of the bar exam, a former president of the AALS courteously described it as “the worst idea he’d ever heard.” The silver lining of this reception, I suppose, is that any commentary subsequently received will have to reflect a more favorable view.

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Comments (7)

1. Posted by Vic on March 21, 2007 @ 14:33 | Permalink

Seems sensible to me, Seth.

I might add the observation, though, that what we teach in law school is a slightly different question than what's on the test. We don't have to teach to the test. So long as students take some tough statutory courses in law school, they should graduate with a toolkit for researching, reading, interpreting and applying statutes and regs. I'm not saying that all law students get that education now, but that might be easier to accomplish than reforming the bar exam.

Or maybe it isn't easier to accomplish? Not very many law schools seem to require a series of statutory courses.

2. Posted by Michael Risch on March 21, 2007 @ 20:19 | Permalink

I haven't looked at studies of practice areas, but with the exception of IP (which is pretty important and growing in a broad range of businesses), I have a hard time believing that a signifiant portion of new attorneys practice in any of the above federal areas or even give advice in those areas on a regular basis over time. Of course, if you go to a specialist group, you will need to learn maybe one or two of them, but certainly not all of them.

That said, I think tax and bankruptcy would be good candidates to add.

3. Posted by Jake on March 21, 2007 @ 21:08 | Permalink

Time being short, only a partial response to Mr. Chandler's screed is feasible.

He complains that "[s]ome states require virtually no knowledge of . . . bankruptcy." At the same time, he complains that the current legal education system overemphasizes "the minutiae of contingent remainders, hearsay exceptions or secured creditors claims," which in turn "ends up disabling lawyers in an embarrassing way from helping a large segments of the population and of businesses with contemporary problems."

In the first place, how does learning the law of secured transactions disadvantage anyone who wants to practice bankruptcy law? Not at all, I would submit.

Second, how does learning "hearsay exceptions" disadvantage anyone who wants to practice bankruptcy law? No one who has ever tried a case involving an evasive debtor or creditor in a federal bankruptcy court could plausibly deny that acquiring a basic comprehension of the rule against hearsay, and the exceptions thereto, is a fruitful endeavor.

Finally, contingent remainders and other uncommon interests in property come up not infrequently in bankruptcy cases.

If Mr. Chandler advocates federalizing law school educations (to all appearances, this is so), bankruptcy law is a poor example for proving his point.

4. Posted by Rod Carew on March 22, 2007 @ 8:58 | Permalink

Isn't the problem the legal fiction that passing the bar indicates competency to practice? A better system of ensuring quality would be combining some sort of licensure/certification with an apprenticeship.

To pinpoint the key federal tax concepts (personal income, corporate, partnership) for the bar exam would a difficult task indeed. At best, I think one could require a knowledge of the basic building blocks, like step-up in basis and the like, but that really is not sufficient to make one a competent tax practitioner.

Bankruptcy is a little easier--as New York does it, at least, one is supposed to know just enough to stay out of trouble and consult a bankruptcy expert--basically, assume assets are property of the estate, don't violate the automatic stay, know that ipso facto clauses are ineffective, know that the trustee can come after unperfected security interests, preferences, and fraudulent conveyances, know that debtors can assume or reject executory contracts and unexpired leases, and don't violate the discharge injunction.

Why the fee tail and the Rule in Shelley's Case are still on the NY bar is beyond me (although I understand that a fee tail is still possible in Delaware).

5. Posted by Jack Bogdanski on March 22, 2007 @ 11:10 | Permalink

A while back, the Oregon Bar Examiners proposed to take Federal Income Tax off our bar. The Oregon Supreme Court refused to do it.

What's crazy, though, is that they test on the Code without giving students access to the Code during the exam. Sends a weird message about statutory law.

6. Posted by Micah Schwalb on March 22, 2007 @ 11:53 | Permalink

In Colorado, at least, the subject matter of the bar exam generally maps to types of cases heard by the state supreme court. Perhaps you can trace the issue to a form of judicial myopia.

7. Posted by andy on March 22, 2007 @ 21:18 | Permalink

i was always under the impression that the reasons were political. say goodbye to state-specific subjects, say goodbye to state-specific bar exams and the barriers to entry that go along with that.

saying that "local law" is required to practice in a jurisdiction is a nice way to justify a state-specific bar exam.

more generally, though, i don't really blame the bar examiners. at least half of 1l year should be devoted to pure statutory courses. learning how to read and brief a case is fine, but one gets a skewed impression of the law if all he does is spend 1L year comparing whether Andrews' policy beats out Cardozo's.

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