Bar Exams with a Grain of Salt
The Moral Evolution of the Ecosystem of Legal Education Demands Reforming the Bar Exam
This is my personal statement and does not reflect the sentiments of my employer.
A society is never stagnant. It heaves and groans with its muscular operations, like Carl Sandberg’s Chicago, the hog butcher to the world, that in its brawny labor also shoots out new verdant tendrils teaming with possibilities that find new places to grow, “building, breaking and rebuilding.” This is the organic reality of living systems. It is true also of the laws that guide society and express the hopes, dreams, angers, and fears of the people who live under it. And, it is past due time to consider how the evolving legal ecosystem has rendered the practices of lawyer licensing to be the evolutionary equivalent of a dead end.
Revolutionary changes have been a fact of life during my career as a professor of law. When I first started teaching, nearly 17 years ago, the world was quite different from the way it is today. Legal education was still a growth industry. New law schools were opening up, and there was optimism for reforming society by making legal education more intellectually diverse and morally informed.
One sterling example of this was the Carnegie Foundation’s Report on Education for the Professions, which included a volume on Legal Education. It was published in 2007, shortly before the collapse of the legal education market. Sadly, the Report was quickly misunderstood and its central argument was overlooked. The Report argued that the role of the lawyer is morally complex. Citing the Preamble to the Model Rules of Professional Conduct (MRPC), which describes the scope of the lawyer’s work as in this way: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” The Report took each part of this goal to be essential, and found the dominant pedagogical models to be wanting. It criticized legal education for overly emphasizing technical approaches to teaching doctrinal classes, and commented that:
a “more effective way to teach is to keep the analytical and the moral, the procedural and the substantive in dialogue through the process of learning the law. This approach is not new to legal education. It is just too infrequently practiced.”
It concludes that “[law] schools need to attend more systematically to the pedagogical practices that foster the formation of integrated, responsible lawyers.” Law examiners should take note of that.
Lawyers are often called upon in their professional obligations to take morally questionable positions to further the interests of their clients. And they do this with trust in the system overall. But lawyers also have ethical interests in living a coherent moral live; this is the dimension to professionalism that gives lawyers a desire to resist being characterized as being overly zealous advocates. The self-regulation of the profession is built on the premise of a professional detachment and objective commitment to the integrity of lawyers in their own lives and the community as a whole.
Any legal ethics capable of meeting the complexity of lawyers’ lived experience must be able to respond to this tension, but the dominant approaches to legal ethics cannot. The Carnegie Report notes the need for what it called the “peace-making and problem-solving lawyers “ who “are the legal profession’s equivalent to doctors who practice preventative medicine.” Their efforts are generally overshadowed by the heroics … of litigators.” But although their skills of negotiation and drafting durable contractual agreements often are given a subordinate place to the drama of courtroom oratory, as the Report notes,
careers in the less glamorous venues “may well provide the best opportunity for students to contribute to the well-being of their fellow citizens, as well as to achieve career satisfaction.”
Lacking insights in guiding the professional identity skews the profession towards gun-slinger theatrics and away from the quiet work of thoughtful public servants. The result is that while there still are hortatory pleas for “community involvement,” pro bono work, and greater professionalism, there is little consideration given anywhere in the profession to the complex issues that relate citizenship in a liberal democracy to the role of the legal professional as a public actor in the political system. Check out the nearly complete lacuna of literature on the “lawyer as public servant,” which remains a goal for lawyering in the MRPC. despite the centrality of it to the role of the lawyer, it is not tested on Bar Exams.
To address these needs, the Carnegie Report argued that greater attention should be given in law school curricula to promoting an understanding of professional ethics, personal ethics, and what constitutes good citizenship for lawyers in the American democracy. While this is clearly an important pedagogical goal, it seems that little attention has been given in recent years to understanding what constitutes good citizenship for the lawyer and how it might be achieved in practice. And yet, the self-regulation of the profession is built on the premise of a professional detachment and objective commitment to the integrity of lawyers in their own lives and the community as a whole.
The Report should be considered alongside several other calls for renewing the tradition which considered citizenship within both political and moral discourse. Anthony Kronman, (Professor and former Dean at Yale Law School) for example, has argued that, under the influence of modern social science, colleges and universities have expelled questions about human meaning from their classrooms, judging them unfit for organized study. Kronman calls for the restoration of life’s most important questions to an honored place in higher education. He urges a revival of the humanities’ lost tradition of studying the meaning of life through the careful but critical reading of great works of literary imagination and philosophical enquiry. Of course, the Bar Exam tests none of this, and cultivates an environment which is hostile to the values endorsed by Kronman.
Ambitious goals like these vaporized after the economic crisis of 2008, which brought urgent market discipline to the bloated and lazy institutional structures of legal education. With the economic collapse, the law schools’ ability to set an agenda for the intellectual discourse of the profession was lost too. What came in its place was a cacophony of anti-intellectual voices who viewed discourse about moral integrity of lawyers lives and the proper function of lawyer-citizens as mere window-dressing on the centrality of law as profit-making industry. I can recall about 2010, a serious and thoughtful colleague urging me to “teach the ethics that firms want to buy.” This sort of thinking eventually threatens free markets and the republican form of liberal democracy that relies on lawyers who are committed public servant to check the ambitions of political persons, even when doing so might go against their own interests. The values of moral integrity and commitment to democracy must be taught and exemplified in law school and beyond. But, the anti-intellectualism today has driven such ideals from the field, and the moral commitment to democracy languishes. Moral commitment to democracy is not tested on the bar exam.
We have entered into a wildly anti-intellectual period, when one can “virtue-signal” by saying you didn’t read law review articles or books. I always ask faculty candidates to tell me about the last book they read. And I have learned about romance novels, westerns, and spy novels from that question. I have troubling memories of AALS Conferences and faculty meetings where the students were described as “product” to be sold into a “market.” I recall Chief Justice Roberts making that claim. And a presidential candidate saying we need “fewer philosophers and more plumbers.” As someone who believes in the universal value of education, I would have hoped for more philosopher-plumbers. I recently had a former student who is quite active in the bar tell me that “your problem is that you are a philosopher.” That summarizes so much of what is wrong with the profession that young litigators now feel confident to be virulently anti-intellectual and to shout the virtue of thoughtlessness from the highest towers, like a call to prayer at the altars of a dogmatic commitment to vulgar instrumentalism. The bar exam is like a medieval mandatum that certifies a new acolyte to the priesthood of instrumentalism.
This period of aggressive anti-intellectualism may be finding the need for reform in the wake of its own avarice. We are beginning to see calls for change coming from some surprising places. For example, a recent report by the ABA Commission on the Future of Legal Education (February 20202) notes that an “accelerating crisis” has gripped the profession. While the global markets for legal services have been transforming the industry for a while now, “The practice of law in the United States” has been changing “more slowly than the world markets in which it operates.” Eventually, of course, this lagging market, which has been possible because of the stubborn resistance to change, will face market discipline. As the Report suggests, “Technology, globalization, and mobility are core enablers of these shifts, and the legal profession and the delivery of legal services are not immune from their inevitable impacts.”
The ABA report calls the current malaise a “design” problem, and this is telling. The Design thinking models that have surfaced in recent years appear to me to be a welling up in the unconscious mind of an awareness that something has gone wrong in the moral life of lawyering. It is concerned with thinking about being “human-centered” in the moral practices of lawyering and law making. But, what is this “human-centeredness”? Clearly, it is a call to moral responsibility and virtue, since one can equally imagine examples of human-centered designs that are wretched, like torture devices and the material culture of slavery. Design thinking longs for virtuous and righteous design, but lacks the vocabulary and engagement with traditions of moral reasoning (and the complex arguments within those traditions). It is a hopeful start at a recovery nonetheless and needs to be taken seriously.
This leaves us with the following diagnosis for legal education: The anti-intellectualism of the current age has denuded the scholarship and the curriculum of thoughtful engagements with the traditions that are the intellectual context of the law. Classes in the philosophical and political foundations of the law, the American form of republican government, and the profound social and political ethics confronting the democracy today are badly needed, yet rarely offered. One wonders how many graduating lawyers today could pass the citizenship test given to immigrants seeking citizenship. We are in a deplorable state of moral decay fed by a loss of knowledge and understanding of the foundations of our civilization.
And yet, we have never been in greater need of moral insight and guidance. The new technologies today present some new, and different sorts of risk than have been present in the past, even as new concepts alter human self-understanding (philosophical anthropology) in ways that have bearing on conceptualizations of moral obligations and social well being. It is part of the nature of information and communications technologies (ICT) that might impact people far from their intended users. And some new technologies can pose unprecedented questions of profound significance. How goals for machine learning should be set, whether and how AI can be held responsible, questions about how trust is formed and maintained in blockchain applications are all examples of challenging new issues that hold significant implications not only for developing regulatory regimes, but also for thinking about the nature of moral obligations and the types of moral goods that can be pursued in a liberal democracy. Lawyers need broader education today, in order to grasp the nature of the issues presented and to give sound counsel to their clients. This is an urgent need in legal education that can only be overcome by displacing the anti-intellectualism that has become the default of the profession. Since the self-regulation of the profession is built on the premise of a professional detachment and objective commitment to the integrity of lawyers in their own lives and the community as a whole, if moral seriousness cannot be restored, the profession should no longer be self-regulating.
The ABA Report suggests the etiology of the current decline traces through the practices of licensing of lawyers, and in particular, the Bar Exam.. It argues that the licensing institutions are a significant obstacle to the reforms that are needed to respond to the changed conditions brought about by new technologies, globalization and the evolving role of lawyering in a changing political structure. In this period when the ecology of the lawyering is changing rapidly, the institutional structures and practices of the conventional licensing procedures, which involve the traditional bar exam administered by institutional Boards of Law Examiners, are ill-fitted to theneeds of society. The ABA report argues:
“The bar exam tests both too much and too little. On the subjects it tests, success depends on extensive and granular rule memorization and application. At the same time, it fails to test key skills central to the practice of law… Law schools use a relatively invariant model that remains wedded to 20th century curriculum and pedagogy, while shortchanging development of the competencies needed today and in the future.”
Thus, while the bar exam itself does not seem well-tailored to the task of protecting the public from unqualified lawyers, it is a strong disincentive to curricular innovation and adds cost that contribute to high student debt, and this in turn leads to vastly under-serving the public. The licensing of lawyers needs to be reformed so that it no longer prevents laws schools from meeting the demanding and diverse intellectual needs of the contemporary lawyer.
Moreover, the bar exam is a significant example of structural racism. The impact of the current Bar Exam system on the demographics of the profession is an issue that bears significant scrutiny. A recent post on “Above the Law” explains that the bar exam was conceived as a means to “keep immigrants and people of color out of the legal profession and to protect established lawyers from economic competition.” Licensing was intended to interfere with economic efficiency in order to allow reserves of wealth to accumulate in, and thereby secure, the middle class. By excluding non-whites from the profession, the exam also functions as a barrier to full participation in the American society.
Reform is urgently needed. The pandemic has brought some of these issues to the foreground. The debacle that many states suffered through as Bar Exams continued on despite rising infection rates and death-tolls showed little nuanced reasoning about the risks to society posed by the spread of disease, and even less concern for the well being of exam takers. As of this writing, only a few days after the exam, reports from around the country are coming in that suggest that unchecked infection vectors have been created by administering the exam. And the institutional structures that isolated the decision makers from oversight have been noticed, at least here in North Carolina, and will likely come under legislative scrutiny. Times are changing, if only slowly. And, so, there is hope. But, it is clear that the profession will become increasing outdated and irrelevant until substantial changes are made. In the words of the ABA report:
“Our profession cannot serve clients effectively unless our education and licensure system acknowledges the sweeping changes wrought by technology, globalization, and mobility.”
The self-regulation of the profession is built on the premise of a professional detachment and objective commitment to the integrity of lawyers in their own lives and to moral integrity of communities they server. If the Bar Exam is allowed to continue to interfere with the necessary goals for educating lawyers as public citizens, then profession should no longer be self-regulating.
Portions of this essay were drawn from, Bruce Frohnen and Kevin P. Lee, “Lawyers, Loyalty, and the Question of Citizenship: Perspectives from the Classroom and from Catholic Social Thought,” Journal of Catholic Social Thought, Vol. 6, №2, pp. 417–448, 2009