You didn’t take the bar exam. That’s probably because you didn’t go to law school. Good for you. Law school is hard. Your first year is an elaborate hazing ritual in which we law professors pull out your brain and put it back in upside down. We make you read hundreds of pages every week while looking for summer jobs and shoring up extracurriculars for your résumé. Most classes base your grade on one all-or-nothing exam at the end of the semester. By the end of the third year, you are a different person: You have learned a new language, new ways to shake hands, new ways to dress, new methods of killing and being killed.
But you did all that, and you didn’t crack. You made it through high school with good enough grades in your classes and on the SAT to get into college. You made it through college with good enough grades in your classes and on the LSAT to get into law school. You made it through law school with good enough grades on exam after exam to graduate. And you paid for it all.
All that was even harder to do if you had to work a full-time job between classes during the day, put your kids to bed, and then spend all night parsing 2,000-word paragraphs written by Englishmen in the 19th century. Or if you were a first generation college graduate, stuck with the additional homework of learning the culture and habits of the professional class.
Now you must take what will be the final standardized test before beginning your lifelong campaign to accumulate capital: The bar exam. Or you would, if you had gone to law school, which you didn’t. Again, probably a good choice.
Then again, maybe you didn’t have much choice in the matter. Ours is an exclusive club, after all. For much of American history, legal education was not open to women, people of color or the offspring of wage laborers. As the demographics of those seeking to practice law changed, the requirements for becoming a full-fl edged lawyer got more difficult. For decades, most students automatically became lawyers upon graduation from law school. But in 1921, three years after the first women were admitted to the American Bar Association, written bar examinations started to become the new norm. That same year, the profession began to “regulate” law schools — that is to say, to make it tougher to get in. Today only one state (Wisconsin) allows graduates to practice law without taking a bar exam.
American lawyers are expected to uphold tradition and precedent; that is to say, to preserve as much as we can of a judicial system founded on white supremacy and naked class warfare, even as social and cultural changes gradually render that system obsolete. As such, the vetting process to ensure that we will be guardians of the system as it is (and as it was) is a vigorous one. There are a lot of genuinely good-hearted lawyers out there, but one might say the entire legal system itself is geared toward protecting the interests of the wealthy, to the extent that it has a natural disdain for those who set out to do anything to the contrary. Gatekeepers charged with making sure that lawyers end up faithful dogs for the right masters are thus ever present, following closely behind earnest students from the first day of their formal education right up till the last day of law school. There’s an academic timeline that every idealistic law graduate knows well:
In your first year of law school, you want to help people.
By your second year, you want to help people, as long as you can make some money doing it.
By your third year, you just want to get the hell out and make a living, already.
The few clear-eyed “radicals” who manage to make it into law school have had their vision so obfuscated by the time they graduate that they often end up using their licenses at big fi rms, helping corporations do all the despicable things they swore they’d never be a part of. In fact, it is a blessed miracle when they do anything other than that; less than two percent of America’s 1.3 million lawyers work on legal problems of the poor.
The bar exam is the final boss, the ultimate flaming hoop, the last chance to stop altruists in their tracks. If you don’t have an extra $2,000 to pay for a prep course, or if you don’t have several hours a day to study for a couple of months, or if you are just not that great at regurgitating obscure factoids that you will never have to use again, you are more likely to fail.
Around this time of year, recent graduates begin posting about whether they passed the bar exam. Over the years, I have noticed an unmistakable overlap in the Venn diagram of 1) those who fail and 2) those who really want to change the system by challenging power, those who remained radical for three long years of brutal reprogramming and financial hardship, those who remember why they came to law school in the first place.
I don’t have any statistical proof that do-gooders do worse. But what I can say for sure is: Students who are the most capable of taking on the whole damn world fail this thing sometimes. Every one of these beautiful souls who does not end up practicing law represents a serious loss. Not just for that person, but for the whole community.
And that brings me to the subject of this column: Why should you, who never took the bar exam, care about who fails it? You should care if you are poor, because there will be no one to represent you. You should care if you are watching the courts, because you only get empathetic judges from empathetic lawyers. And you should care if you are interested in your society at all, because — like it or not — lawyers tend to make the rules. Who would you rather have in positions of power? People who are good at taking tests? Or people who are good?
Dan Canon is a civil rights lawyer and law professor. His book “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class” is available wherever you get your books.
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