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.