Via Above The Law, Elizabeth Wurtzel has a post at the Brennan Center complaining about the bar exam:

[T]here’s a long, proud tradition of gifted attorneys who failed the bar, at least on their first try. Hillary Clinton, Michelle Obama, Franklin D. Roosevelt, Jerry Brown—who is now California’s attorney general—all screwed up once, as I discovered when I myself failed. …

There are many better ways that the ABA could keep the numbers down in the profession: for instance, while there are only 130 accredited medical schools, there are nearly 250 law schools that have been approved by either the ABA or a state equivalent. (California is particularly notorious for pretty much letting anyone with a law license and a shingle open a legal academy.) And there are many more students in a law school than a medical school, given the lack of need for cadavers and the like: for instance, the entering class at Harvard Medical School has 165 slots, whereas the 1L class at Harvard Law School contains 550 people. Plainly, the population of legal academia is excessive.

The bar exam does not, like a licensing exam for nurses or physicians, test a potential lawyer’s recognition and understanding of the laws he or she will be expected to utilize in practice. For example, in virtually every state, all criminal law on the bar exam in derived from the Model Penal Code, which is not actually the law in any state. (A handful of states, including Pennsylvania, have adopted most of the MPC; even then, the specifics of the MPC have little relevance to the daily lives of criminal defense lawyers.)

The bar exam similarly does not in any sort of objective manner evaluate a lawyer’s generalized ability to analyze legal issues, to, as they say, "think like a lawyer." In most states, the bar exam involves a multiple choice test — something that never happens in law, and which conceals the ambiguity of most legal questions — followed by a series of short essays graded based on "issue-spotting." Here’s a tip to young lawyers: if you ever load up a brief to a court or a letter to a client with as many legal issues as you can "spot," you will swiftly lose and/or be fired.

It’s hard to even guess what the bar really tests; it mostly tests a candidate’s ability to memorize a particular method for spotting and discussing generic legal issues in short hypotheticals.

At the same time, though, outside of California and New York — renown for arbitrarily high failure rates — the failure rate of most bar exams is overstated. In Pennsylvania, three-quarters of first-time takers pass the bar (as do 88% of Beasley School of Law graduates). Taking the bar exam is a grueling, frustrating, and expensive process, but it’s not completely arbitrary. For the great majority of candidates, the bar exam is more a nuisance than a genuine barrier to practice.

The bigger problem, however, is just what Wurtzel said: there are way too many law graduates.

Although Wurtzel sees the bar as a means of restricting the number of lawyers — presumably to keep legal billing rates high — there doesn’t seem to be too much genuine, price-lowering competition among lawyers, particularly not among the Wall Street corporate lawyers whose work Wurtzel considers such a "noble pursuit." Even in our dismal economy, with an unemployment rate hovering just below 10%, lawyers are making out more like bankers than like average workers, with average hourly billing rates expected to rise more than four percent just over the next year, four times the core inflation rate.

How can lawyers do that? Simple: despite years of dire predictions about the "commoditization" law, lawyers still aren’t commodities. Trusted lawyers don’t have a lot of direct competition. Sure, there’s always some lawyer willing to undercut the fee charged by another, but who wants to entrust their money, livelihood, or freedom to a discount lawyer they barely know? Lawyers are no different from doctors, plumbers or mechanics: they work in areas beyond the abilities of their clients. Once clients find lawyers they trust — at all — they tend to stick with them unless the fees become unbearable. (Need proof? Witness Hunter S. Thompson calling his lawyer’s work "inadequate and inexcusably negligent" and then nonetheless trusting him with another matter.)

But what about when those fees do become unbearable? What about clients who have not yet found lawyers they trust?

That’s why we have a bar exam. It may be unreliable, imprecise, and almost punitive in its design, but, as of yet, it’s the only way we have to separate the wheat from the chaff, the only way we have to protect clients from truly incompetent lawyers who made their way through the diploma mills that Wurtzel bemoans — diploma mills that sometimes include Yale, Harvard, and Stanford. There are plenty of smart people at those schools, but there’s no assurance that every last one of them is competent to practice law: none of those three bother to issue grades any more, not even inflated grades, and they can produce lawyers capable of bungling lawsuits or walking their clients into criminal charges. Little wonder Wurtzel knew several people at Yale Law who failed the bar: the bar was the first experience they had in real grading on legal performance, and they didn’t adequately prepare. 

Did they eventually pass? If so, chalk their failure up as a nuisance, rather than a barrier to practice. They just needed a little more threshing than some other grains did. Maybe they were even made more diligent and humble by the failure, and thereby were made better lawyers.

I don’t think passing the bar means a lawyer is necessarily skilled or competent, nor do I think that failing the bar once is an indication that someone will not be a great lawyer, but if a potential attorney can’t ever pass the bar — the same bar that thousands of others pass every year on the first attempt — then why should they be licensed by the state to represent clients?