At the beginning of R.F. Kuang’s novel The Poppy War (which I just started, so this isn’t a review), the main character Rin must strip naked and be patted down before taking an exam. She can’t even wear her own clothes into the exam room.
I immediately harkened back to reports that the Texas Bar and those of several other states were prohibiting those taking the bar exam from bringing their own tampons or pads with them to the exam. Since those reports came out, the Texas Bar has relented to the extent that it will allow women to bring their own products in a clear plastic bag (a la the ones you use for your liquids at the airport).
In both cases, the authorities are obsessed with preventing the test takers from cheating. I don’t know if there is a good argument for the exam in the world of Kuang’s novel, though given the amount of ugliness and corruption hinted at so far, I suspect the test is mostly a tool for keeping out the riff-raff, and might not be the best way to determine who should receive higher education.
But I have taken a bar exam – the Texas one, in fact – and can tell you that it is essentially a hazing ritual, a tool to make you put in a lot of wasted hours studying for the test, which is not the same as studying how the law works, so that you can show you are willing to do a lot of meaningless work to put “Attorney at Law” after your name.
When I read about the tampon rule, my first reaction, even before reacting to the misogyny and silliness, was “they’re giving an in-person bar exam during the pandemic? In Texas, where the pandemic is pretty much out of control right now?”
And yes, they are. Some states have waived the exam or figured out how to give it remotely, but not all of them. It seems that states so obsessed with preventing cheating that they monitor feminine hygiene products are unwilling to consider a remote exam where there would be no proctors.
What really bothers me about all this concern about cheating is that a test that doesn’t allow someone to look something up or ask someone else for help does not, in fact, test anyone’s capacity to practice law.
Back when I practiced law, my favorite form of research when presented with a new problem was to call up someone who knew a lot about that area of law. That would give me a starting point, after which I would go to the library and look up a bunch of material.
There was a point when I knew everything there was to know about when a volunteer for an organization might be considered an employee for purposes of workers compensation payments. I know that because I had to handle a client’s problem. I did not learn it in law school or memorize it for the exam.
I’m currently taking a class in public speaking and one of the things my teacher (Erin Weed, in case you’re looking for such a class) keeps emphasizing is that public speaking is a team sport. You need to get help from other people in preparing your material. Yes, when you get on the stage you’re on your own, but to do a good job, you need help from other people.
A lot of people are unaware that when someone is going to argue a case at the U.S. Supreme Court, they do mock hearings before other lawyers who ask questions in the style of the justices. It takes a lot of lawyers doing work to make sure that the one presenting the case has the right arguments and the right presentation.
That is to say, the practice of law is best done as a team sport.
Which leads me to suggest a much better bar exam, one that could easily be given remotely because there would be no need to worry about cheating. Instead of a collection of multiple-guess questions based on a conflation of laws that do not reflect the actual law in most jurisdictions (that’s the multistate bar exam) and a bunch of trick essay questions on areas of the given state’s law, why not give the students legal problems to solve that involve research and maybe even a phone call or two? Maybe even give them an client (played by an actor) who might be lying to them – surely we could do that with Zoom or email.
That is, test how well they can do what real lawyers do: find a way to solve a client’s problem using their ability to analyze and research it.
In marital property law, give them a pregnant client who wants a divorce. In criminal law, give them a client who confessed. For contracts, make them draft one using a boilerplate form as a base and figuring out what else should be included.
A time limit will weed out the people who don’t know where to start.
You could even grade on creativity in the response, because some of the most outstanding work by lawyers involves coming up with a new solution to an old problem.
With a test like that, we might get more of the lawyers we actually need.
Both my daughters participated in Mock Trial, a competitive activity in which the teams are given a case (the same case statewide–I’m not sure if it’s the same case nationally) and divide into prosecution and defense, defendant and witnesses. They work with lawyers who sponsor and coach them, learn the protocol of a criminal trial (watching a courtroom drama with my girls is an exercise in patience, as they both keep yelling “the judge would never allow that, you blowhole!” at the TV set), and teach them how to present their cases and research the relevant laws.
It’s awesome to watch. Suddenly all these gangly teens become deadly serious participants with facts at their fingertips. Older daughter’s team went to the state finals. Younger daughter’s team (she was lead attorney for the defense, I believe) came in second city wife. Short of my one time on a jury, it was the most -real- experience of the justice system I’ve ever had. If they could do something like that remotely, it would beat the hell out of rote memorization of facts.
They do those in law school. I think the competitions have expanded over the years and also include arguing appeals. I never did it, though — my first experience doing a trial was as a summer intern, and it was real life, not mock.
But yeah, a mock trial or mock oral argument would be a good test. So would writing a brief or memorandum of law done as an open book test. Because that’s the sort of thing lawyers do, and they don’t do it from memory.
Mostly, I’d totally agree with this. Life experience tells me it has to be handled carefully.
In various teams I’ve been on, the only woman or the only minority person has been evaluated differently by some examiners and treated differently by some team members. Decades later I’m still getting apologies. The ‘what real lawyers do’ needs to be prefaced with training and, quite possibly, tests need to include a particular element of blind assessment. An Australian orchestra claimed it lacked women because no female applicants had done well at audition. The moment all applicants were known only by number and were hidden when they auditioned, this changed so radically that other orchestras took it on. Classical music is far less misogynist than other Australian music as a result. Note the ‘far less’ – Australia is still a problem child for women.
I was thinking of a written test, just an open book one. I think too many people sit for the bar exam every year to have each of them do a mock trial or oral argument. That keeps you from running into that kind of discrimination, assuming that the exam is graded by people who don’t know the names or any other identifying features of the people testing.
Mock trial and argument is good training, but not everyone is cut out to be the person doing the presentation of the argument. But every lawyer should learn how to analyze a situation well. That can be shown on paper.
And the US is obviously not doing any better when it comes to women.