Barriers to Entry: On Bar Exams and Supreme Court Seats

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.

The California Supreme Court is poised to reduce the passing score for the California state bar– long considered to be the toughest bar in the country, according to this Dealbook piece from last week, California Supreme Court Moves to Make Bar Exam Easier to Pass.

Although the court has yet to decide what the “cut score” –passing mark–  will be, changes are expected to be in place by January.

The bar exam is just one many barriers to entry originally set up to make sure people of the right class– and mindset– were licensed to practice law. (For more on this topic, I recommend Jerold Auerbach’s Unequal Justice: Lawyers and Social Change in Modern America (Oxford University Press, 1977)).

Yet as Above the Law reports in California Bar Examiners Stripped Of Authority To Determine Passing Score On State Bar Exam:

…bar exam passage rates have plummeted across the nation for the past several years. In California in particular, test-takers’ performance has been outstandingly poor, prompting a chorus of critics to demand that the state’s cut score be lowered so that more law school graduates will be able to pass the exam and become practicing attorneys. As it stands, California’s required passing score of 144 is higher than that of 48 other states, with only Delaware’s cut score being higher. For decades, California’s bar exam has been referred to as the hardest in the country, but year in and year out, data has revealed that to be untrue. With the state’s mean scaled MBE scores continuing to be higher than the national average, it seems that California’s bar exam is simply the most difficult to pass thanks to its arbitrarily high cut score.

After a stunningly low overall passage rate of 34.5 percent for the most recent exam, the State Bar of California committed to study the test and examine the cut score, but it looks like the California Supreme Court thought that the process was taking too long, so the justices took it upon themselves to do something.

The Deal Book account expounds on some reasons for the change:

Nicholas W. Allard, dean of Brooklyn Law School, hailed the action as an effort “to take back control of licensing and admitting new lawyers.”

The move “signals that much larger concerns are at work that will force eventually an overhaul everywhere of legal testing and licensing practices,” he said.

“Traditional bar exam and licensing practices have outlived their sell-by date and are increasingly hard, if not impossible, to justify as serving the best interests of the profession or the public.”

One flash point in the debate over the California exam was an announcement in April that Whittier Law School, a half-century old and accredited by the American Bar Association, would close.

Bar passage rates at Whittier, long an avenue for disadvantaged students to become lawyers, had plunged in recent years. Its passage rate hovered in the routine statewide range, about 68 percent a few years ago, but fell to 22 percent on the July 2016 bar.

Some critics complained that a number of Whittier graduates had scores high enough that they would have passed nearly every other state’s bar.

Bar Exam Rationale

One rationale for having a bar exam is ostensibly to make sure that each new attorney has a basic competence in the law of the state in which she or he intends to practice.  Sounds reasonable, right? After all, once one is licensed to practice, a newbie lawyer could do significant damage to one’s client– anyone remember Body Heat?– by forgetting basics, such as the rule against perpetuities.

But, believe it or not, much of what current bar exams test is not actual state law– but “Multistate law”.  Both the New York and Massachusetts bar exams– at least when I took them– each devoted one of two days to written essays examining the respective state’s law, and the second, to the multiple choice, Multistate exam. Which didn’t test law in any actual jurisdiction, but in a multiple choice, easily scored format, tested an examinee’s knowledge of the majority rule in the country. Talk about a waste of time! This knowledge was completely useless to the actual practice of law in any state.

Maybe, you could say, it tested a candidate’s general intelligence, or ability to master a body of knowledge– albeit, useless knowledge.  But what more would taking this test score on that scale, that three years’ attendance at an accredited law school hadn’t already established?

I say, the bar exam merely serves as a barrier to entry. And if that barrier is set too high, then, it’s high time the California Supreme Court did something about it (because it appears that the bar examiners have taken their sweet time in addressing the problem).

And here’s where I haul out the embarrassing list of famous people who failed bar exams, as support for the argument that what these exams test isn’t all that important to the practice of law anyway. Kathleen Sullivan, name partner in Quinn Emmanuel, leading appellate litigator, former dean of the Stanford Law School (and my first-year criminal law professor), quite famously failed the California Bar in 2005 (after already long ago having passed the New York and Massachusetts tests decades earlier).  Others who didn’t pass on a first try include Michelle Obama, Hillary Clinton, Governor Jerry Brown, Franklin D. Roosevelt, and Supreme Court Justice Benjamin Cardozo, according to this Buzzfeed piece, 14 Famous People Who Failed The Bar.

Why Must Supreme Court Justices Be Lawyers?

This California bar issue brings me back to a wider issue, that I noticed recently when I posted a link to another Above the Law article, Judge Richard Posner Rips On SCOTUS, Oldsters — And No, He’s Not A Troll on a debate between Judges Richard Posner and Jed Rakoff on life tenure for Article III judges, a mandatory retirement age, and whether Supreme Court judges need to be lawyers.

Posner, currently a sitting judge on the United States Court of Appeals for the Seventh Circuit and University of Chicago School of Law professor. Rakoff, Senior United States District Judge of the United States District Court for the Southern District of New York, was one of the only judges not to rubber stamp tepid settlements the SEC and DoJ entered into with financial institutions, as Yves discussed in Judge Rakoff Blasts Breuer, Prosecution of Companies Rather than Individuals in Bar Speech and other posts.

The Above the Law piece discussed a debate on Slate, Should There Be Age Limits for Federal Judges?, moderated  by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide.

In this post, I’d like to focus on the third issue, whether judgeships, especially membership of the Supreme Court, should be limited to lawyers only.

Let’s begin with Posner, who fired the initial salvo:

Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.

To which Rakoff responded:

Jeepers, I’m a little taken aback by Judge Posner’s salvo….

…I doubt very much that a person who, however brilliant, was not a lawyer would make a good Supreme Court justice, any more than an engineer, however brilliant, would make a good surgeon. From the day they enter law school, lawyers not only learn the legal methods and processes that are necessary to the proper practice and interpretation of law but also learn some very important lessons that are too little taught elsewhere: that there is something to be said for each side of most issues; that careful distinctions therefore matter; that a decision that cannot be supported by reason is essentially lawless; that in the long run the fairness of procedures is as important as the substantive results; that being a good judge is not a popularity contest; and that protecting the rule of law requires eternal vigilance. It is hardly surprising that in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty, and, as July Fourth reminds us, our country was no exception. I would not be happy entrusting the rule of law to a legal rookie.

These are the money quotes, but the entire Slate piece is worth a read, as there’s some interesting back and forth not only on this, admittedly highly hypothetical concern, but also on the life tenure and mandatory retirement age issues.

Now note what I’m not saying here.  I’m focusing on Judge Posner’s suggestion that judges– particularly Supreme Court justices– need not be lawyers.  I do think that legal training is indeed necessary to practice law– although I’m not sure that the standard US three-year law school system is the best way of preparing for such a career. That, however, is a complex topic best left perhaps to consider further some other time.

And I’d go further and agree that a failure to get access to competent lawyering has denied ordinary Americans effective access to their courts– an issue Rakoff wrote eloquently about in the New York Review of Books, Why You Won’t Get Your Day in Court  and which Yves discussed in this post, Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America).

But there’s a big difference  between lawyering and judging– especially at the level the Supreme Court operates at, where many issues considered are constitutional ones. As I’ve written  previously in Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court:

[D]espite its formidable reputation, constitutional law isn’t particularly intellectually difficult. Now note that I said intellectually difficult– the choices the Supreme Court has to make are certainly difficult, often because they involve finely balanced considerations, with merit to both sides of the argument.

To be sure, issues that make it up to review by the Supreme Court involve many areas of the law. But constitutional elements can be properly understood by many, many competent lawyers. Now tax law, that’s hard (at least in the period I attended law school, and worked for a leading white shoe law firm– most lawyers consider tax to be the most intellectually demanding area of the law). And as for other areas of intellectual endeavor– modal logic, anyone, that is downright formidable. There are not many minds capable of making real contributions in that area. But I digress.

So, to recast the point slightly differently, what’s difficult about constitutional law is not its sheer  intellectual complexity, but the difficulty of deciding which of two or more important principles should take precedence, where there’s merit to each side of the argument..

And why should the privilege of making those decisions be limited to lawyers only?  And, I might add, to lawyers who attended law school at either Harvard or Yale– as is the case with the current membership of the Supreme Court.

So perhaps Posner is onto something in suggesting that maybe judgeships, or more narrowly, Supreme Court seats, shouldn’t be reserved merely to lawyers– although I suspect many of the 1.3. million US lawyers would probably disagree with that position.

I’m not so sure, so I’m throwing this open to readers: what do you think?

But if you’re not willing to go as far as Posner and open up judgeships to non-lawyers, surely you’re with me in thinking that for selecting judges (again quoting from my earlier post cited above):

[More attention might be paid] to the type of experience that a potential judge would bring to the table. So how about candidates who have done public interest work, served as public defenders, held elective office, been plaintiffs’ attorneys, or specialised in qui tam cases? Why do we seem only to see academics, corporate lawyers, or those with extensive Department of Justice experience?

Diversity isn’t something that needs promotion only upon entry to the legal profession, but at the judicial pinnacle as well.

And, lest you say that Trump is unlikely to appoint many public defenders to the bench, well that may be true. But that doesn’t hold for all those categories.

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  1. P.E.

    Professional Engineering licensure can give another frame of reference. This is also done by state, but the stats use a national exam for each specialty, although some states like California sometimes require some focused questions on local concerns (e.g. seismic for civil/structural engineers). The pass rate for first-time takers is generally about two-thirds. Interestingly, multiple takers generally have less than a 50% success rate overall, so the test does appear to examine if somebody can solve problems after repeated studying, and some people just don’t seem able to get there. That indicates that it is reasonably good at weeding out the Dunning-Kruger candidates who somehow managed to get past the educational/experience process into the exam.

    There are actually two exams. The first one effectively tests the first two years of engineering school and is very heavily focused on math and science and is very general – essentially an engineering SAT. This is generally taken at the time of graduation. It is the exam that many experienced engineers fail if they didn’t take it right away and wait until later in their career, so it is the exam that trips up many foreign applicants who come to the US years into their career. The second PE exam is taken after the experience requirements are met, so is generally taken at least three years after graduation. It is effectively a refresher exam to make sure you retained actual engineering problem-solving capabilities several years after graduation. The problems themselves are not particularly difficult unless you never learned the material or are very rusty.

    The standard route into the FE and PE exams is a minimum of an accredited 4-year degree (mainly American and Canadian universities, but some foreign ones have gone through that process) followed by several years of experience under a PE.. There are alternative routes where foreign students can get their education background evaluated for equivalency and also an experience-process where somebody does not have the formal educational background but has been working in the field under the tutelage of PEs. These people would generally be at least in their late 30s by the time they have met the experience timeline hurdle.

    Once licensed in one state, the use of the national exam means that most PEs can become licensed in another state by “comity”. An ABET accredited degree and passing the exams usually makes that a formality, but it gets much trickier with the experience and foreign education candidates as each state sets their won standards for evaluating those.

    Some engineering and technical schools are not ABET accredited and many high school seniors don’t understand that when they enroll. That leads to nasty surprises when they go to apply for their PE license and are denied the opportunity to take the test until they have put in a number of additional years of experience. The US states generally exempt government and industrial engineers from licensing requirements, so many of these older applicants shifted from those jobs into consulting later in their career.

    So to get a PE, you go through a university program that has about a 50% attrition rate and then an experience and exam route that has about an 80% overall success rate for people who get into the exam.

    1. PE

      BTW – the pass rate on the FE exam taken right out of university is about three-quarters. So most students retained enough of the knowledge to pass an exam on it on the first attempt 2-3 years after they had taken the courses that exam was based on.

      One fo the ways to think about the PE exams is that it is like the stadium jumping course at the end of the three stage horse eventing program. The first part is dressage where they horse and rider have to execute a series of ballet-like maneuvers with precision and ease. The second part is doing a cross-country race over obstacles that test the horses speed and endurance. The stadium humping course is at the end and is designed to prove that the horse and rider still have something in the tank after those and can successfully execute a short, but stressful program after undergoing the stress of the cross-country portion. The FE and PE exams show that the graduate engineer has broad-based technical academic knowledge in the tank years after initially being trained and then seasoned by on-the-job experience.

  2. PDB

    While the bar exam may indeed be a barrier to entry that tests mostly useless, obsolete, and non-state specific law, the recent attack on bar exam cutoff scores has nothing to do with eradicating this pointless hoop for the sake of creating a more meaningful licensing exam. It is all about the fact that for several years now, law schools have been admitting thousands (if not tens of thousands) of people who have no business being lawyers in the first place in order to prop up enrollment numbers (and therefore, tuition dollars). Back in the fatter years, when lots of more qualified people were applying to law schools, there wasn’t a peep out of anyone, even though the bar exam was as useless then as it is now.

  3. Kingfish

    I live in Mississippi. Justice Court Judges only have to have a high school diploma and are elected. Justice Court is a county court. It handles misdemeanors not handled by a municipal court and also is the small claims court.

    Guess which judges get in trouble the most with the agency that disciplines judges? Justice Court Judges. Their decisions are reversed on a regular basis. They don’t have to know rules of evidence and state law decrees that you are not entitled to discovery at that level. Thus the lawyers make money off of appeals to the next level (County Court). These judges constantly get into trouble over ethics problems as well. What you are advocating in terms of requiring law licenses for judges is in operation here and it causes the most problems.

  4. Louis Fyne

    Shopping for a lawyer is not like shopping for a bag of apples.

    Pick a bad bag of apples, your life isn’t ruined. A person, especially someone barely making ends meet, picks a barely competent lawyer? Recipe for some people to get burned.

    This piece raises many reasonable points. and the current system isn’t perfect and is flawed. Cynically, having more people licensed as lawyers is for the purposes of social engineering and/or more licensed attorneys = more revenue for the local state bar association

  5. sid_finster

    I never thought ConLaw was particularly intellectually challenging; quite the opposite – it was abundantly obvious from the outset that in most constitutional issues, rather than weigh evidence and arguments in search of a conclusion, the judges first made up their minds and then looked for justifications, no matter how flimsy, which would support their conclusions.

    ConLaw a nerd-wrestling version of “might makes right”.

    1. grayslady

      I took ConLaw back in college and never had your sense of “might makes right” in the decisions. The Miranda decision, in particular, gave defendants previously unavailable protection against police abuse. (These days, unfortunately, the police seem to have opted for shooting suspects dead rather than having to read them their rights.) My professor opined that law was a mirror of society; and, to the extent that lawmakers and judges used to represent society’s interests rather than the interests of the elites, I think that was often true. Plessy v. Ferguson (separate but equal was okay), decided in the 1800s, was essentially overturned in the 1900s by Brown v. Board of Education (separate schools for blacks and whites were not equal).

      More often, it struck me that the decisions were narrowly tailored to specific action or inaction. There were not that many cases where large swaths of society were affected–such as those previously mentioned. To me, it seemed that fine legal technicalities determined many of the decisions. In those cases, highly trained counsel probably made a difference in the outcomes.

      1. sid_finster

        “might makes right” probably seems an ill-chosen phrase.

        That said, the judges on political decisions obviously first reached their conclusions and then sought out justifications for them.

        Sometimes this line of reasoning may have led to decisions that were socially useful. But what they were not was intellectually honest.

        And as we have seen recently, that kind of intellectual dishonesty “the reasoning may be faulty but we have the votes for the majority and this is how we want to rule” type of might making right can be just as useful for those who aren’t quite as concerned with broader social justice.

  6. LZFR

    I would love to see the graduation/matriculation rates in the for profit Legal schools in California and how they track next to the bar pass/fail rates. A lot of these schools don’t even require that you take the LSAT in order to go to their law school, just so long as you’ve got a social security number and an address for the loan application.

    1. Enquiring Mind

      As long as the check clears on all that non-dischargeable student loan, those schools continue to be motivated to market their services. Do any law schools have rock-climbing walls like those universities braying for new students?

    2. anonn

      The California Bar publishes the results by school and school type after every exam.

      One should note that the July exam results are the ones that matter, as the February exam is mostly taken by applicants who failed the previous July.

      Here is the link.

  7. barefoot charley

    A complementary feature of California’s high bar is it’s low field: it’s the only state that doesn’t require a law degree to take the exam. You can simply read law, hang around a law office if you like, until you feel ready to pass the bar, like Abe Lincoln did. Few people do this anymore, but some do.

  8. philnc

    A couple of thoughts from a former lawyer who went on to a second career in something completely different. First, one of the things you learn in law school is that the law is not “only what the court says it is”. In most cases philosophy or politics doesn’t enter into decisions, there are established court rules, statutes and case law that impact how the outcome of most cases. They key to taking account of all that is a firm understanding of legal process and basic black-letter law. I think anyone who starts out without a law school education, no matter how brilliant, is going to have a hard time with that. Having said that, when it comes to trial work I think a lack of basic investigatory and trial advocacy skills has severely degraded the quality of justice the system hands out. Those are the kinds of skills you can’t really learn in a classroom, but are an essential part of the practice. Real estate closings can be managed by paralegals, but you’re going to need a lawyer if things go south and everyone winds up in court. But to be honest, it’s even less likely that a non-lawyer is going to grok what happened in a trial than a recent law school graduate, because they don’t have a basic framework for understanding it.

    On written bar exams as barriers to entry, it’s clear to me that neither the MBE nor the additional “local” exams that have traditionally served as the gatekeepers to bar admission have done a very effective job. The 1982 New Jersey bar exam, which at the time was considered extremely tough, only had a 48% pass rate. Although I passed, there were many people who were much smarter than me who didn’t (I didn’t graduate anywhere near the top of my class, and some of those who failed were in the upper tier). I did go on the fail the New York bar exam — twice, before passing the year before I was eligible to waive in (by then it had become a grudge match for me). The problem with bar exam alternatives, like apprenticeship or even a PhD. style individual oral examination, is that they’d be enormously expensive, and probably restrict access to the profession even more than the law school + written exam regime. I have no answer to this one. It’s a difficult issue. Maybe turning the third year of law school into a mandatory clinic-in-law for every student is part of the solution. How the cost would be defrayed is beyond me, but maybe a fee or tax paid by lawyers in exchange for clinicians taking on their pro bono obligations would work.

    1. Dwight

      Couldn’t someone who had worked as a law clerk, then passed a rigorous bar exam, have the necessary understanding of legal process and black letter law, and as much if not more investigatory and trial advocacy skills? Or couldn’t a 3- or 6-month legal training institute for those who passed a more rigorous bar, followed by a period as a law clerk prior to full admission, do the trick at less cost to aspiring lawyers?

  9. grayslady

    A friend of mine is taking the California bar exam next week. He received his undergrad degree from Yale and his law degree from Columbia. He tests very well, always being in the top 1% on major tests like the SATs and the LSATs, and he has been studying for the exam full time for the last seven weeks. He also spent two years working as a legal analyst for a law firm prior to entering law school. Although I expect him to pass (based on his history), if he doesn’t succeed, I, for one, will think California’s policies are an unnecessary burden to talented future attorneys.

  10. anonn

    This is an astonishingly bad idea. Our bar exam in California is not tough; I passed it after a week of study and everyone I know from law school passed it, if they studied at all. It only looks hard if you just look at the passage rates because in California we allow anyone with a pulse to take the exam. Almost all other states require that potential attorneys graduate from a law school accredited by the ABA.

    The California state bar allows people who went to a small group of schools that it accredits, and also some that are wholly unaccredited. Those groups have horrific pass rates that skew the whole thing. While it looks like there’s an “all takers” pass rate of 40% or less, for applicants from real law schools it’s close to 70%.

    The poor suckers who graduate from these terrible schools end up saddled with a huge amount of debt that’s undischargeable in bankruptcy, with nothing to show for it. The tiny percentage of graduates from these schools who do pass the bar exam have a grossly disproportionate number of ethical complaints and discipline. Back when the Bar Journal still published on paper, it included little blurbs about all the lawyers disciplined that month for incompetence, substance abuse, and outright stealing from their clients. The blurbs contained the bar number of the miscreant, and you could find out where he or she went to law school from that. Most months, graduates of unaccreddited schools (10% or so of lawyers in CA) were 3/4 or more of those disciplined.

    This may sound like snobbishness but there are serious problems that stem from getting grossly incompetent legal representation.

  11. The Infamous Oregon Lawhobbit

    @Kingfish: Oregon municipal and justice courts are similar; until recently they required only election or appointment (for the most part, though there were residency requirements in some cases). But Ms. Scofield’s point about “legal training” is well taken – some of the most wild west courts I’ve ever seen were courts that had lay judges with no legal training. On the other hand, I’ve also heard of attorney-judges who ought to know better deprive people of basic civil liberties for no legal reason, so it’s not like a law license is any guarantee. Remember – the judge for Ferguson, Missouri, was an attorney.

    Oregon now requires muni judges and JPs to either be attorneys or to attend the National Judicial College in Reno (though see above about how attorneys can screw it up, too).

  12. Romancing The Loan

    As a public defender I would very much like to see more of us become judges, but I can’t say making the CA bar easier strikes me as a good idea nor do I agree with you about the general usefulness of the multistate bar exam.

    Even the sketchiest knowledge of areas of law that are not your own is wildly useful since each client is not an island and their issues (especially with poorer clients) often overlap – knowing when to say “what? no, god don’t do that!” or telling them when it’s time to consult a specialist has made a difference for me a bunch of times. I know CA’s cutoff is especially hard but I assume this is to place a cap on the # of lawyers as well as a floor on their competence, and “not enough lawyers practicing” is most certainly not the reason why poor people don’t have access to legal representation.

    It’s the economics of getting the degree and running your own office that’s what makes it impossible to charge fees the poor can afford and still do a good job. (If it wasn’t for my scholarship I’d probably be at an insurance defense firm contemplating suicide.) It’s already hard enough to find someone who will give you decent advice without ripping you off, and flooding the market with even more poorly prepared grads will make it even harder. I have to say I’d worry that it’s a decline in legal education (lowering standards to make up for declining admissions as the administrative salaries mount!) that is causing the lower bar passage rates, and lowering standards would only be papering over the problem.

    Also the idea of non-lawyer judges is scary to me given how even some of the non-trial lawyer judges’ grasp of evidence and con law is, frankly, a lot shakier than I’m comfortable with.

  13. Wade Riddick

    I’ve got news for Rakoff. Engineers are already performing surgeries. They’re building robots to do them.

    And as an English major, I’m the best doctor in chronic pain and autoimmunity I’ve ever met. I read the medical literature myself and built my own model of the human body. My solutions were cheaper and more effective sometimes by a factor of ten. Medical school is oftentimes more about gatekeeping and orthodoxy than cutting-edge science.

    Justices who understand political theory and economics would be great. Bribery is not freedom. Money is not speech. Corporations are not citizens. Even a lawyer who’s read Madison’s Federalist #10 knows that. It would seem the law schools are about as bad at teaching genuine law as medical schools are at teaching genuine medicine (or Econ departments are at teaching actual economics).

    1. ex-PFC Chuck


      Medical school is oftentimes more about gatekeeping and orthodoxy than cutting-edge science.

      Not just medical schools, but all post-graduate academic and professional schools. As Jeff Schmidt points out in his important book Disciplined Minds: A Critical Look at Salaried Professionals and the Soul-battering System That Shapes Their Lives, they see their missions as assuring that those they let pass through the gate not only have sufficient mastery of their subject matters but perhaps even more importantly that they also “think right” about the roles their professions and specialties play in society.

  14. Paul Hirschman

    How about lawyers who possess other qualities and have experiences that are at least as important as knowledge of the law? Working in a non-legal context for an important period of time? Service to some institution from which the lawyer could not benefit personally? Have failed at something important in his or her life? Spent serious time with people who are not white and rich?

  15. jackiebass

    Perhaps some kind of apprentice program is needed to help some law students become successful lawyers. Hands on is usually a more effective way to learn over traditional class room learning.

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