Kathleen Sullivan is licensed to practice law in New York and Massachusetts; and has taught at two of the top three law schools in America; and has argued three cases before the United States Supreme Court. In terms of a market test, a sophisticated business client was willing to hire her to be on the brief of the appeal of a $500 million judgment. The fact that she is not a member of the California bar yet speaks to the fact that the California bar exam is meant as a barrier to entry to a cartel rather than to any "consumer protection." Sullivan didn't spend enough time studying for the exam in August and flunked the three-day test, and is taking the test for a second time today. (Maura Dolan, "A High Bar for Lawyers", LA Times, Feb. 21). Sullivan's client isn't especially prejudiced; she'll likely still work on the brief, though unable to argue it or formally put her name on the pleadings.
True: California, as a state, has the most idiosyncratic law and procedure in the nation, with many counterintuitive down to the jargon of calling briefs "Points and Authorities" and the archaic requirement of blue-backed top-hole-punched filings, such that experience elsewhere can require a learning curve when transferring skills to California. But the California bar exam neither teaches nor requires knowledge of any of these idiosyncracies! With a couple of exceptions, the exam tests generalized legal reasoning, nationwide federal rules, or consensus majority law.
Absurdities abound. When I joined a California law firm (coincidentally, the one that opposes Sullivan's client in the appeal (OL, Feb. 3, 2005)—full disclosure, I put in a few dozen hours of work on the case in 2001 for City of Hope), it was at the same time as a former federal magistrate judge, also from out of state. This fellow was an Article I appointee, sent people to prison, ruled on millions of dollars of cases, and was being entrusted with a partnership at a law firm with potentially hundreds of millions of dollars of liability if he committed malpractice—but had to waste a month of his life studying obscure elements of law unrelated to his practice for the bar exam.
Why not let the market decide? The imprimatur of a major law firm or top law school is clearly a more prestigious and selective endorsement than that of the California bar exam; very few clients would insist on both, especially when dealing with experienced attorneys. The dozens of fly-by-night unaccredited law-school graduates who can't pass the bar could find work doing document review or privilege logs, or go ahead and charge a lower rate to clients who can't afford and don't need a cartelized attorney. Attorneys could distinguish themselves from the masses by virtue of advertising their law school or getting accreditation from a third party. I call this the "Hebrew National" model of licensing: some hotdogs are matched with consumers who are okay with pork miscellany, while others insist on a paying a higher price for a dietary standard and use vendors who get certification because they "answer to a higher authority." Perhaps one would see more market competition over the 40% contingency fee for straightforward cases. And the millions of dollars devoted to studying for and grading thousands of exams could be redevoted to policing unethical behavior among those who've previously passed the bar.