… or talk about the bar. Welcome to one of those “only on the internet” moments, a spirited debate between three people I adore: Elizabeth Wurtzel, Richard Epstein, and John Yoo. The subject: the bar exam (but also law schools and the legal profession more generally).
Here’s one thing the three share in common: they’re all graduates of Yale Law School. The similarities pretty much end there. Elizabeth Wurtzel is a litigatrix at the high-powered Boies Schiller firm, but her real claim to fame is her work as a bestselling and critically acclaimed writer. Richard Epstein is one of the nation’s leading law professors — U. Chicago and NYU folks, you can argue over which school he belongs to — and an outspoken libertarian. John Yoo, a prominent (and conservative) law professor at UC Berkeley, is most well-known for his work in the Justice Department’s Office of Legal Counsel, where he authored the so-called “torture memos.”
Wurtzel is super-liberal — her reaction to 9/11 was controversial, to say the least — while Professors Epstein and Yoo both hail from the right side of the aisle (to put it mildly). Back in May, I identified both Epstein and Yoo as possible nominees for the conservative wing of an “unconfirmable” Supreme Court.
So how would you react to learning of a three-way debate between Wurtzel, Epstein, and Yoo — in which the dynamic is not La Wurtzel v. Epstein & Yoo?
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.
Epstein comes to the defense of the bar — and gets in a dig at his alma mater:
There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination. It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law. It is also a mistake to think of the law as a set of senseless rules. The students who fail the bar can’t work with any set of rules. There are virtually no students at the top of the class who don’t pass the bar.
Indeed the insistence that intelligent students can deal with rules that make “neither financial or intellectual sense” gets it exactly backwards. I am never hired to explain rules that everyone understands. I work in areas that make no financial or intellectual sense, where the herculean task is to put some order in a tiny corner of the overall situation. The inefficiency of law and litigation does not begin with the licensing ritual. It begins with the silly statutes and convoluted rules that legislatures and courts put in place.
You could repeal the bar tomorrow and nothing would change on that score. Ms. Wurtzel turns out to be a graduate of Yale Law school. But an expert on the bar examination she is not.
But wait! Wurtzel has a defender, a knight in shining armor. And it’s…. John Yoo?
Let us all agree that Yale Law School does not prepare anyone for the bar exam. Like Richard and Liz Wurtzel, I’m also a Yale grad. But Yale is weird, even unique: it has very only one semester of required courses, only two grades (honors and pass), and little classroom focus on learning the legal rules. It focuses on learning fancy theories, particularly those of the faculty. In other words, it’s good prep for the young future law professors of America (you even get the same days off).
This is generally true. But in defense of YLS, it is possible to learn black-letter law there. I took almost every black-letter and statutory-law course that I could while at 127 Wall Street. In addition to all the standard 1L fare, like Contracts and Torts and Property, I took Crim Law, Crim Pro, Sentencing, Complex Civil Litigation (aka “Remedial Civ Pro because you didn’t learn it 1L year”), Bus Org, Bankruptcy, Tax, Advanced Tax, and even ERISA….
Now, Yoo’s defense of Wurtzel:
But just because Yale doesn’t train practicing lawyers doesn’t mean that a) law schools in general are good at it, or b) that the bar exam has any real relationship to one’s success as a lawyer. Most students no matter where they go, I believe, pay thousands of dollars after graduation to attend cram courses to prepare for the bar exam. Only a hardy (or foolhardy) few, I bet, dare take the bar based on what they learned in school.
[The bar] has little to do with whether someone will make a good lawyer. I knew someone in law school with a photographic memory — he could recite exactly the text of a case after reading it once (or, more importantly, the pages from a cliff notes summary of the case). But he couldn’t adapt that memorized rule to a new set of facts, which is what law practice will require; his mind didn’t work that way. So even if Liz Wurtzel failed the bar exam, I bet it has little predictive value for her lawyer skills.
And now it gets really weird. Wurtzel and Yoo were college pals, back in the day!
In the interests of full disclosure, Liz Wurtzel and I were college classmates — I even edited some of her editorial pieces for the Harvard Crimson. Let me just say that her writings of 25 years ago were more in the spirit of her Prozac Nation than Story’s Commentaries on the Constitution. You can guess which ones would be more fun to read.
A small piece of advice: be nice to your classmates in college and law school (and maybe even come to their defense, in somewhat annoying and oversensitive fashion, when fun is poked at them on the internet). You never know; someday they might be famous.
The Bar Exam Isn’t Senseless, and Neither Is Law [Ricochet]
2009 Raw Data Law School Rankings [Internet Legal Research Group]
All the best people fail the bar exam… Elizabeth Wurtzel says [Althouse]