Shaping the Bar: The Future of Attorney Licensing PDF
Preview Shaping the Bar: The Future of Attorney Licensing
SHAPING THE BAR This page intentionally left blank S H A P I N G T H E B A R The Future of Attorney Licensing Joan W. Howarth STANFORD UNIVERSITY PRESS Stanford, California Stanford University Press Stanford, California © 2023 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any infor- mation storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid- free, archival- quality paper ISBN 9781503613560 (cloth) ISBN 9781503633698 (electronic) Library of Congress Control Number: 2022011081 Library of Congress Cataloging-in-Publication Data available upon request. Cover Design and Art: Derek Thornton/ Notch Design Typeset by Elliott Beard in Minion 11/14 For Carmen This page intentionally left blank CONTENTS Preface ix Part One The ATTorney Licensing crisis And how we goT here 1 The Crisis in Attorney Licensing 3 2 Becoming a Lawyer in the Young Nation 15 3 Shaping the Bar in the Twentieth Century 23 4 The 1970s Legacy of Activism, Psychometrics, 31 and Good Faith 5 Pressure Points in Contemporary Licensing 39 Part Two sLouching TowArds MiniMuM coMpeTence 6 Decades Lost Without Research 51 7 Doubling Down on the Errors of Legal Education 59 8 Finally, Research on Minimum Competence 66 viii CoNTENTS Part Three chArAcTer And FiTness The Right Stuff 9 Who Fits? 79 10 Fixing Character and Fitness 90 Part Four The FuTure Competence- Based Alignment of Experience, Education, and Exams 11 Twelve Guiding Principles 99 12 Clinical Residencies 110 13 Asking More of Law Schools 118 14 Escaping the Conceptual Traps of Today’s Bar Exams 127 15 Bar Exams: Better, Best, and other Fixes 136 Afterword 147 Acknowledgments 149 Notes 151 Index 219 PREFACE MY MEMORIES OF TAKING THE bar exam are spotty. After law school graduation I spent June and July 1980 with hundreds of others listening to lectures about legal rules in bar review classes in the Los Angeles Convention Center. When not at the convention center, I was at my kitchen table memorizing thick books of rules. I used a highlighter to try to stay focused; eventually the pages were solid yellow and soggy. Aside from the tedium, it was not a bad time. I had a job lined up and only one thing to do. Sympathy and kindness surrounded me. Studying for the bar was such a recognized ordeal that my ex- husband gave me a car to free me from the bus. Even the woman behind the counter at the convenience store wished me good luck and told me how smart I was each time I visited. The stress and boredom of bar preparation were enough to escalate my junk food cravings and visits to the sympathetic 7– 11 clerk but were not bad enough to drive me back to cigarettes. My experience was okay. One close friend was not as lucky. Her focus disappeared when her walking companion collapsed and died on an early morning walk the week of the test. That shock derailed my friend’s bar exam and her career, for a time. For the nights of the test, another friend and I shared a motel room by the Long Beach Convention Center where we took the exam. I had ix x PREFACE never heard of Rémy Martin, but I remember that was the cognac my friend pulled out of his suitcase our first jittery night in the motel. The next morning, I found my seat in an ocean of card tables, four to a table, on the floor of an arena in the vast convention center. Elbow room in- creased when one test- taker left the first morning and never returned. That July, California bar examiners conducted an experiment in which test- takers were randomly assigned to take one of several new types of tests designed to be more like law practice. The experimental section would not count in our score, but we were unsettled by this random note in an exam that otherwise featured lockstep uniformity. I was a bit disap- pointed and a lot relieved to be selected for a relatively tame and straight- forward version of the performance test experiment. Within a week I had forgotten most of the rules highlighted yellow in my bar books. The results were released on a Friday late in November. Too impa- tient to wait for Monday’s mail, I trekked to the state bar office early Sat- urday morning to look for my name. The scene was bizarre and scary. Local television crews filmed the shouts, tears, and raucous champagne celebrations. A wild crush of candidates pushed forward to read the tiny type of the alphabetized lists of names on sheets of computer paper taped inside the wall of the giant plate- glass windows. I found my name, pushed slowly back through the throng, and was delighted to never again have to think about the bar. Bar exams became important to me again years later. I have been teaching law students in the shadow of the bar exam for thirty years. The more students I taught, the more disturbed I became about attor- ney licensing. It is not just that the bar exam does a poor job of testing minimum competence. Plenty of annoying and thoughtless hurdles exist, and law school supplies its share. The inequity and harm to the public are more troubling. I have known elite students at fancy law schools who should not be lawyers; they can cruise through a bar exam but not look a client in the eye or treat her with respect. I have also taught wonderful students at less elite law schools whom I would trust to represent me, except they never passed a bar exam. I have seen up close and personal the disparities inflicted by our current licensing tra- ditions, both law school and bar exams. I can see the faces of too many highly competent former students who are not practicing law because they did not pass the bar. Too many are African American or Latinx.
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