How to Prepare You for the Bar Exam and Teaching You What You Need to Know to Practice Law

The ABA rules for law schools used to say explicitly that "The law school may not offer to its students, for academic credit or as a condition to graduation, instruction that is designed as a bar examination review course."
 

That rule did not prevent the law school from teaching subjects that appear on the bar exam. The bar covers so many subjects that there would hardly be anything left for law schools to do if that were the case. Instead, the rule meant just that law schools must concentrate on teaching the subjects without regard to how you might use what you learn.


That rule does not appear in the revised ABA rules for law schools. But its spirit lives on. Since those rules were revised in 1983, professional bar review courses have not exactly suffered a serious decline in enrollment as law schools raced to become more bar-oriented. Plus ca change, plus c'est la meme chose.

The underlying principle here is that it's low-class for a law school to concentrate on the bar exam. Thus, the "national" law schools like Harvard, Yale, and Columbia emphasize that they're training students who can practice law anywhere, and not just in the states in which those schools are located.

In fact, the prestigious law schools seem to take perverse pride in the thought that their graduates might not perform as well on the bar exam as those who graduate from a "local" school. It seemed to be commonly accepted at Columbia, for example, that Brooklyn Law graduates were a step ahead:

"At the New York bar review course," goes the joke, "all the Harvard and Columbia students run after the Brooklyn and St. John's students yelling, 'Hey, what's the New York law on torts?' All the Yale students run after the Harvard and Columbia students yelling, 'Hey, what's a tort?'"

This state of affairs keeps the big-name schools from having to compete head-to-head against the supposedly lowbrow schools. You can't get statistics on how many graduates of each school pass the bar exam, but even if you could, and even if Brooklyn Law had a higher pass rate, schools like Columbia could look down their noses and say, "Well, thank God Brooklyn Law School does something well."

Practically everyone wants to go to one of the big-name schools. By ignoring the fact that those schools are not particularly concerned with the bar exam, these students essentially admit that the bar exam is not a big concern to them. And no matter which school they attend, many will study securities law, international law, and other areas that hardly appear on the exam, while ignoring subjects that will be tested heavily. Given this, it's no surprise that even the ABA's Section on Legal Education has suggested that law school programs and bar exams are out of kilter with one another.

If the bar exam tests your readiness to practice law, then law schools that don't prepare their graduates for the bar exam are shortchanging them. On the other hand, if law schools feel comfortable ignoring the bar exam, then they must think that it doesn't test what you need for a legal career.

Something's gotta give. For the moment, though, let's assume that, no matter what's on the bar exam, law schools are keeping their eye on this question: What should we teach our students to make them good attorneys? Of course, we'll have to ignore these contradictory statements by legal experts:

If a legal education is designed solely to prepare the student to pass a bar examination, to know the rules (whatever that may mean), and to learn the tricks of the trade, then the law school does not belong in the modern university.

Or, on the bar exam specifically:

If the bar exams became the sole criteria [sic], law schools [might] teach toward the bar exam, instead of better, deeper teaching. ... Yale doesn't teach toward the bar exam.... [A] lesser institution might have a better bar exam pass rate. But to choose [a lesser institution] over Yale is absolutely crazy.

as opposed to:

Almost all of the 60,000 people who take the Multi-state exam every year must take a bar review course to pass the exam. Are these bar review companies doing something that the law schools should be doing?

Or, on the long-term future:

There is not a single lawyer with whom you would have gone to law school who feels that his legal education adequately prepared him for the practice of law (or anything else for that matter).

versus:

There will be a dangerous tendency to impose narrowly-professional courses on law schools. These may be of immediate value to employers, but of dubious long-range benefit to students. If anything, law schools should give more attention to ... courses which seek to broaden the perspective of law students.

Or, on what subject matter they're trying to teach:

It is neither possible nor desirable to teach the contents of the great body of statutory law, judicial opinion, and agency ruling that exists in the United States....

versus:

[This casebook on securities law] has been prepared primarily for law school use, but we have been heartened that securities lawyers and Judges have also found it valuable as a reference work.

Again, let's ignore these contradictions, and simply assume that law schools are trying to teach their students what they'll need to be good lawyers. That's a tall order.

Courses in Law Practice and Academic Skills

Law school did offer many academic courses. But very few practical courses, or courses designed to develop our skills in research and writing.

It's not that those topics are somehow unimportant. On the contrary, attorneys who have good interpersonal skills, for example, have been shown to appear more trustworthy and capable to nonlegal observers. If you graduate from law school without practical skills, you can forget about hanging out a shingle, and you'll be embarrassed to discover that you don't know how to handle ordinary legal problems for your Richard W. Jennings and Harold Marsh, Jr., Securities Regulation: Cases and Materials, 4th ed. (Mineola, NY: Foundation Press, 1977), pg. xvti. That is, it's a highly detailed casebook, taking pride in teaching much of "the contents of the great body" of law on the subject of securities.

Studies indicate that practicing lawyers wish their law schools had focused more on such academic skills as legal writing and research.133 In one study, 84 percent of attorneys said that their law school educations were "only fair" or "poor" in giving them "the ability to conduct a law practice on a businesslike basis." Only 40 percent said that law school had been "good" or "excellent'' in teaching them "to diagnose clients' problems and needs and to provide counsel."

When discussing the place of skills training and practical courses in legal education, researchers typically make comments like these:

The skills rated [by questionnaire respondents] as the most important to the practice of law were apparently learned outside law school....

There was substantial criticism of law schools' failure even to make their students aware of the importance of some of these competencies to the actual practice of law.

We've skipped a lot, but, thank God, at least we've finally figured out what you're supposed to be getting out of law school. Armed with that insight, we must try to believe that there is so much academic knowledge to teach, and the goals of that academic teaching are so clear and so important, that it was worthwhile and even necessary to ignore the practical side.

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