Friday, August 22, 2008

Abolish Bar Exams?

August 22, 2008, 8:30 a.m.

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Abolish Bar Exams?

A friend, former school board colleague, former mayor of North Liberty, congressional candidate -- and recent Iowa law school graduate -- Dave Franker, argues in a Register op ed this morning that Iowa (which recently decided to stop examining potential Iowa lawyers on their knowledge of Iowa law) should abolish the bar examination entirely. David Franker, "What to Keep More New Lawyers in Iowa? Drop Bar Exam," Des Moines Register, August 22, 2008.

Some states already grant law licenses to those who've earned law degrees from designated law schools, and Franker is making the case for why Iowa should join them.

I have to confess to a little apprehension about the idea.

When I entered law school Dean Page Keeton brought all the new entrants into a room and literally used the line, "Look to your left. Look to your right. One of you is not going to be here next year." He was right; the faculty's grading of exams resulted in roughly one-third of all first year law students not becoming second year law students.

Most of the ones who remained probably could have safely been permitted to practice law on clients. Nonetheless, a bar exam was required as the final rite of passage. Fortunately, we were permitted to take it before graduating. It made for a heavy last semester, what with getting out more law review issues than usual, carrying a full load, holding two jobs and managing an apartment house (as I now recall, perhaps erroneously) -- so much so that I wasn't able to take the bar review course -- but I passed, was admitted, and was able to use the summer before my clerkship began to tour all the national parks west of the Mississippi.

All of this was, literally, a half-century ago.

Grade creep has spread through our schools like kudzu in Alabama. If I recall today's local high school graduation ceremonies correctly, roughly a third to a half of the graduates graduate "with honors" of some sort. There used to be just one "valedictorian." Now there are multiples. I recall a talented high school student near tears over her grades; they were all "As," but she had hoped to get one more "A-plus" than she got in order to bring up her average.

Undergraduate programs in colleges and universities, and even graduate and professional schools, have yielded to the pressure.

The law schools have not been immune.

Indeed it was my concern about the quality of lawyers' writing, as reported to me by judges, that was a part of what caused me to run for, and serve on, the local school board -- believing that the law schools simply could not solve this problem all by themselves.

Before I launch into this commentary, let me make clear that I believe the national ranking of the University of Iowa's College of Law -- among a handful of the top public law schools in the country -- is well deserved. See, e.g., Nicholas Johnson, "Random Thoughts on Law School Rankings," April 29, 2008 (and, as noted above, as of this morning still among the "most popular" of the blog entries). Individual faculty members are productive, conscientious, collegial, care about students, and sought after by other schools (as professors and as potential deans). The law library is, by some measures, number one or two in the country. Our best law students are fully the equal of law students anywhere.

My comments relate to law schools generally (as well as education generally), not any one school in particular.

But today, if a law school dean's talk to new entrants were to be honestly given, it would be, "Look to your left. Look to your right. All of you who want to will be back here next year." If you stay in town, attend a goodly number of classes, take your exams, write your papers, and aren't found to have engaged in conduct involving moral turpitude it's very difficult (though not impossible) to "flunk out" of a law school. And if you do so anyway, the odds are good you can be re-admitted at some point.

Many lawyers, including myself, believe there are some law school courses that every lawyer should take. When I was in law school most of those courses were required. Today they are, for the most part, "electives" that students are free to take or not.

All of the above has prompted me to propose (without gaining the support of a single law professor or member of the bar anywhere, so far as I know) a two-track law school curriculum and system of evaluation. Anyone with the minimum GPA and LSAT score could be admitted to, attend, and graduate from law school -- as now.

But for those who wanted to become practicing lawyers there would be more required courses (both academic and skills), along with different, and higher requirements and standards regarding such things as preparation, performance, and professionalism. (I've hinted at some of the distinction in "So You Want to be a Lawyer: A Play in Four Acts" -- probably, among the thousands of bits of writing I've posted to my Web site and blog over the years, the one that consistently receives the most hits from around the world.)

Indeed, it would be interesting to know what they'd say if you'd ask medical and law school faculty members, "What percentage of the students you've had, say five years after they've graduated, would you be willing to trust with your personal legal business, or your family members' health?"

At present, my sense is that law faculty -- understandably and with reason -- sort of assume it is the bar examiners' job to make the judgment about who is, and is not, qualified to practice law, and it is the faculty's job to concentrate on doing the best job of teaching and supervision they can provide with the resources they have.

So, (1) I still think the UI College of Law is deservedly one of the best in the nation, (2) that its faculty would be capable of assuming the bar examiners' role of granting bar admission to graduates thought to qualify, (3) that Franker's idea is worth pursuing, but that (4) until law school faculties are given, accept and execute that responsibility it might be premature to eliminate the bar examination and admission process in Iowa.

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