The fabulous Elizabeth Wurtzel — the bestselling and critically acclaimed writer, who graduated from Yale Law School and is now a litigatrix at the powerhouse known as Boies Schiller — has a bone to pick with the bar exam. In a recent post on the blog of the Brennan Center — an organization that we won’t try to describe, since some of you objected vigorously to our last attempt — Wurtzel questions the value of the bar exam as a gatekeeping mechanism for lawyers. (Those of you frantically cramming for the test right now might agree with her.)
Wurtzel begins by noting how Kathleen Sullivan — the noted constitutional law scholar, former dean of Stanford Law School, and current name partner at Quinn Emanuel Urquhart & Sullivan — didn’t pass the California bar.
Wurtzel then argues….
If the bar exam was meant to be more than an empty and painful ritual, if the American Bar Association was anything more than an absurd and fusty guild, when Kathleen Sullivan failed the bar, bar administrators might have used Sullivan’s failure to pass the test as the occasion to ask whether, perhaps, something is wrong with the exam and process of bar admission. After all, if the results of the bar exam were meant to matter—if it were meant to predict the likelihood of success as a lawyer—the failure of a great legal mind ought to alarm the people in charge. Were there a test given to all applicants for positions at Goldman Sachs—intended to show if you were good at making money—and if somehow Warren Buffett failed it, I’m certain that the good folks in HR would be set to work on a new exam.
But Wurtzel isn’t out to rationalize her earlier failure of the bar exam. Rather, she has a broader critique of the legal profession — and it’s a provocative one.
(There’s a reason why Ashby Jones of the WSJ Law Blog described Wurtzel as “the Antonin Scalia of legal commentators.” Of course, Wurtzel is considerably more attractive than Nino — unless bushy eyebrows are your thing.*)
Wurtzel appears to agree with our very own Elie Mystal regarding the surplus of lawyers — and what should be done about it:
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….
Well, law schools need cadavers too — tuition-paying cadavers, aka students. Wurtzel notes that the entering class at Harvard Medical School has 165 slots, while the 1L class at Harvard Law School contains 550 students. “Plainly, the population of legal academia is excessive.”
What is to be done? Wurtzel turns her fire on the legal diploma mills who plunge their graduates deep into debt, with no corresponding increase in job opportunities:
[L]aw is a business that is profoundly badly run, and in these sorry economic times, I am hardly the only person who is saying so. But I know that the first thing that has to go is the bar exam — along with all the eighth-rate law schools producing ninth-rate graduates who take the test — because it’s the first step in a bad system.
(The U.S. News rankings stop at the fourth tier. Perhaps referring to “eighth-rate law schools” is a way to avoid offending anyone?)
If the bar exam is pointless and a gigantic waste of time, it may mirror aspects of the profession it regulates entry into, Wurtzel suggests:
The common denominator among the bar-failers in my class at Yale Law School—and there were a few—was a complete inability to comply with senseless rules; they weren’t the best students, but they were the tartest and the sharpest people—and the least likely to accept the constraints of Big Law that make neither financial nor intellectual sense: the fifty-state survey to prove a negative, the memo to nowhere, the repetitive brief that says nothing and gets read by no one. The inefficiency of law and litigation in practice begin with the complete waste of effort that is its licensing ritual.
Well put, Ms. Wurtzel. It’s a depressing thought, but perhaps we’ve been given the bar exam that we deserve.
Wurtzel’s complete post is quite insightful — and, interestingly enough, more optimistic than the excerpts quoted above. She expresses the belief that “law is a noble pursuit” and that “lawyers are supposed to be the good people.” Read the post in full over here.
* We reached out to Liz Wurtzel and asked her how she felt about being compared to Justice Scalia. She responded:
Well, it’s naturally flattering to be compared to someone who is very brilliant and completely fearless — and also, apparently, quite charming and skillful at Chess. His other great characteristic is his ability to be truly good friends with people who don’t share his views — he is extremely close, for instance, with Justice Ginsburg.
All those virtues aside, if Scalia and I were going to burn a flag together, I doubt that we could agree on a brand of lighter fluid.
Testing, Testing… What Exactly Does the Bar Exam Test? [Brennan Center for Justice]
Wurtzel on the Bar Exam: ‘The First Thing That Has To Go’ [WSJ Law Blog]