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Messages - loki13

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"Well, that's not really the point. The question is whether the Calbar in it's current iteration is the only exam which can sufficiently meet our requirements."

You are conflating two separate issues. One is admission to a bar in general (regulated by the state bar), and the other is the bar exam (which is one component of the bar admission process).

Let me break this down- imagine that, next year, the CalBar adopts the UBE for part of the Bar. Yes, you say. Won't that be awesome! But it won't change anything except the passing scores. Because everyone still has to get admitted to individual bars! Which is a function of each bar's rules. And unless and until California relaxes their rules, other states won't relax their own rules (reciprocity). Which is what matters. Not to mention many states that allow for UBE scores still require their own procedural requirements.

Then, of course, there is the question as to what the cutoff score for the UBE would be. California could, at their discretion, set it high enough that it wouldn't "solve" the problem Chemerinsky wants to solve.

Also? It is my understanding that Hawaii is not one of the few states that allows for the transfer of MBE scores.

"Would the multi-state practice benefit outweigh the probable reduction in local fees? I don't know. I worked in an industry with no such regulation and tons of national competition before going into law, and everyone still made a very nice living. I guess I'm not as freaked out by competition as most lawyers."


I'm partly being harsh because it's fun. But I think you aren't understanding your own points. Think through your own argument-
1. Continue to have a barrier to entry (you state you are in favor of bar exams, C&F, licensing requirements).
2. But allow increased portability of licensing. (Query on this- have you looked into reciprocity recently? While some states are terrible, such as Florida and California, others are in giant, multi-state compacts...).
3. ??????
4. Profit!!!!

Do you see the tension in your points? You aren't increasing the *national* supply of attorneys (see 1). You aren't increasing consumer protection. While you might be amerliorating local shortages, that isn't usually a problem- places that are unattractive to practice (for example, rural places in flyover states) won't suddenly become attractive practice areas, while California and Florida already have, well, a fair number of attorneys (they are both top 20 per capita in number of attorneys and number of working attorneys, despite having the most "restrictive" rules for the bar).

Either argue for real competition, or argue for real licensing and policing of the profession. But, again, this is just Chemerinsky special pleading.

And if you can't pass the CalBar, btw, you have absolutely no business practicing.

Loki, are you saying that in order to be intellectually consistent I must either be against any restrictions, or in favor of all restrictions?

Nope. Look back to your original statement, re: competition and supply and demand. Simply put, you're trying to have your cake and eat it too. You want to keep in all the wonderful anti-competitive aspects of a licensed profession, but allow a little more labor mobility, which really only affects people currently licensed (aka, people who are already benefiting, such as us!) without really benefiting the consumers. *Because you acknowledge that you want to keep in the barriers to entry, just modify them a wee bit to allow Chemerinsky to look a little better!*

Your other argument (it's about protecting the consumer) doesn't hold water. Because you stated, at the beginning, that protectionism was a key function of the bar- if it was really about protecting the consumer, then the ongoing policing functions of the bar would be given a higher priority. Want a laugh- read a disciplinary case of someone who already has their license.

What I don't find enjoyable is the rank hypocrisy of those like Chemerinsky. The special pleading. The bar examination is certainly not too hard as it is. Perhaps, instead, we should either acknowledge that any barrier to entry is bad (solution 1), or we should take licensing requirements seriously (solution 2). Instead, we get the stupidest of all worlds, with people taking pathetically easy licensing requirements and complaining that they're too hard.

Nonsense, it's a straw man argument. ...

Has anyone here actually read the article? The UBE is still a bar exam, and still allows for state-specific questions. It would simply make your degree more portable. Why would any of us be opposed to that?

Not a straw man argument, for the reasons I wrote. Your argument is confused- you can't appeal to both efficient markets and protectionism. You just don't like me pointing out that my critique of your argument exposes how confused it is. :)

I did read the article. Let me make it more simple for you: "I, Dean Chemerinsky, would very much like it if my students could take an easier Bar Examination. Thank you!"

Look- you like protectionism? Awesome! You like efficient markets? Then let your freak flag fly! But complaining that a few unique and precious snowflakes aren't passing the California Bar, and, therefore, should be allowed to take the MBE? That's not an efficient market- that's special pleading.

I had someone ask me this question recently and didn't have a good answer for them. We all know that passing the bar alone doesn't make you a lawyer, but during a group swear in recently a friend of mine told me that the Judge told them "You are now officially lawyers, you can now represent clients" (but his bar card won't show up for week or two)  I thought you had to have that to legally take clients.

Does that Judge just not know what he is talking about??? I sure would hate to think the old SOB was committing malpractice and giving bad advice to greenhorns that way. Strikes me as a potential domino effect of character and fitness violations!  :o


When you pass the bar exam, and pass the state bar's moral character and fitness provisions, and pass any other provisions that may be applicable, then you are allowed to be part of the state bar- you are sworn in. Whether you chose to do so by a public ceremony or executing a notarized affidavit is up to you.

At that point, you are an attorney.

There are occasions when a Bar Number is helpful. Like signing certain pleadings.

But the bar card is just a piece of plastic.


No offense, but.... (I love that opening!)....

Your argument is completely, totally, 100% muddled. If you're against protectionism, and you are for consumer choice, then you should be fine with doing away with the Bar Exam completely and, for that matter, getting rid of UPL. After all, in libertopia, bad advocates will eventually be weeded out, maybe by Yelp and/or tort suits, so we don't need any barriers to entry. Let real competition flow- why restrict it to fancy book-learnin' types who went to law school and passed a test (and/or moral character and fitness)?

On the other hand, you appear to be advocating for barriers to entry- just, you know, easier ones. Ones that aren't too taxing on would-be attorneys, and (bonus!) would allow attorneys to practice in multiple states regardless of their knowledge of the local state's laws.

Either have the courage of your convictions, or don't. What do you want- real competition, or an actual barrier to entry? And, by the way, I don't believe the current barriers to entry amount to much, because, as we are all aware, even with the requirements, there were far too many licensed practitioners and far too few jobs.


To be more specific, the states that have formerly had a degree privilege had it for the State University; it used to be somewhat more prevalent, but died out in the 1950s-60s, and now only Wisconsin has (had? there was a federal case about it) the degree privilege.

I think the degree privilege is a terrible idea for a number of reasons, and even more terrible for states where very many people would want to practice. As you might note, states like California and Florida tend to have the most restrictive policies for bar membership (and reciprocity!) for a reason. They don't need to attract more attorneys- they attorneys already want to practice there. North Dakota, on the other hand....

Each state sets its own standards. Most states, rightfully, have a bar exam. The overall trend has been to allow more reciprocity, easier licensing, etc. IMO, that isn't a great trend. Just because a school is ABA-accredited does it make it good.

"but don't screw over those who are already at the finish line."

If you can't pass the Bar, you don't deserve to practice.

Given the quality of practice I see on a regular basis, the Bar doesn't act as much of a screen, so I assume that the only people that have failed the Bar are the lazy and the incompetent.

Well, first I would argue that there is nothing wrong with being an a-hole. But, in all seriousness, the bar exam does function as a barrier to entry, and it would be remiss to have this conversation without noting the elephant in the room.

Moving on, there are a number of interrelated questions-
1. Should there be a licensing requirement?
-The answer to this depends, I think, on how one feels about ULP (unauthorized practice of law). Personally, I think that the rules should be somewhat lessened (many paralegals and others could help with small-scale things in order to lower costs, and software to help pro se individuals shouldn't be so ... frowned upon); that said, I do believe in guarding against ULP and in appropriate licensing. So, if you think that there should be a licensing requirement...

2. Should a "bar exam" be a part of the licensing requirement-
-Again, in America today we tend to frown on high-stakes exams, and, to be frank, meritocracy in general. It's a gold-star society. But requiring some type of licensing exam which (to be honest) is a mix of natural ability and application of learned skills is useful. No, it's not a perfect fit, especially the MBE parts (the criminal law parts, by their nature, have to not work in any given state). But it's good enough. I have yet to meet someone who I knew was perfect attorney material who could not pass a bar.

3. So, how to calibrate-
-I would argue that California calibrates a little harder than other states for a number of reasons (protectionism, non-ABA accreditation, and number of takers to begin with); I would also argue that the overall passage rate in California is more desirable than other states. While I joke about making it harder, kind of, I don't think making the passage rate approximately 50% nationwide is unreasonable, *given the current makeup of who is taking the tests, etc.* In many other countries, it is more difficult to become an attorney- I recently looked at the requirements for Japan (litigation), and, let's face it- we have it easy.

I think most of the posters on this thread are missing the point-

the Bar is pure protectionism. Now that we have licenses, we should want to keep the pass rates as low as possible. Barrier to entry and all that.

Instead of asking how to make the CalBar easier, you should be asking how to make it much, much harder. After all, three days is nothing. Why not five?

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