Petition: Minnesota bar exam shouldn't be limited to grads of ABA accredited schools
Apr 29th, 2009 by Mark Cohen
I have blogged before here that something has to give in our current system of legal education. Annual tuition rates are in an eye-popping range — now $30K to $40K at most law schools. (In Minnesota, the U is a little cheaper, but all three other local law schools are $30K-plus). Many law students are graduating $100K-plus in debt at time when the number big law firm jobs that allow students to service that kind of debt is shrinking and starting salaries are holding steady or declining. In fact, some firms are currently cutting starting salaries. I posited in my earlier post on the high cost of a legal education that perhaps more receptivity to online education alternatives was one answer; others suggested slicing the length of a legal education from three years to two or one.
All those ideas worth thinking about, but there is one problem that makes them not feasible — the American Bar Association accreditation process. The ABA tends to be slow and deliberative rather than lithely moving with the times. To get ABA accreditation, law schools more or less must be the traditional brick-and-mortar institution with lots of musty books, a library, full-time traditional faculty members to opine great thoughts, etc. (Don’t worry though, no sports team required.) Those things cost money, of course, which helps to explain the skyrocketing cost of a legal education. Plus that legal education must be three years because … err … because … well, four would be too much and two just wouldn’t be enough, I guess.
Enter Dorsey & Whitney partner Roger Magnuson, who today filed with the Minnesota Supreme Court a joint petition of individuals challenging the ABA’s dominance in determining who can take the Minnesota bar exam. The petitioners — all of whom went to law schools not accredited by the ABA — have asked the Minnesota Supreme Court to change its rule requiring an individual be the graduate of an ABA-accredited law school to take the state’s bar exam. (The proposed amendment would allow individuals licensed outside Minnesota who did not go to ABA-accredited law schools to sit for the Minnesota bar.)
The individuals seeking this change include a professor at the U’s Carlson School of Business who got his law degree online (licensed in California); a graduate of Nairobi law school with an LL.M. in taxation from William Mitchell College of Law (licensed in New York); two graduates of an unaccredited religiously affiliated distance learning law school (one licensed in California and one licensed in California and Wisconsin. The petition also makes mention of a partner at Dorsey & Whitney’s California office who was not allowed to sit for the Minnesota bar in 1998 because his law school was not ABA-accredited.
The petitioners argue that “well-intentioned, but increasingly archaic rules” have not kept pace with the rapid-fire changes brought about by new technology.
“New ideas on educational opportunity cannot be stopped,” the petition says. “It does not take Bob Dylan to tell us the ‘times, they are a’ changin” and even in a profession as restive and resistant to change as the law, some very modest changes in admission practices can providenew opportunities for highly qualified applicants, without any sacrifice of the quality, indeed potentially an enhancement of that quality, which is the purpose of the current requirements.” (For the full petition, click here.)
Feelings are likely to be mixed on this petition. There was a lively debate on this blog earlier about whether or not Minnesota had too many law schools for the job market. On the other hand, many expressed the opinion that law school should not cost an arm and a leg. I would be willing to bet, however, that those who have already given their arm and leg (and are having difficulty finding jobs or enough legal work in this economy) might have some issues with the proposal. Thoughts?
Sounds like a bitter Dorsey partner. One should ask if this move is being driven by a large firm’s desire to be able to move their lawyers to different offices, rather than some intrinsic concern of fairness and reforming the system.
Can you post a .pdf of the petition?
We did link to the PDF, just click on the “click here” for the full petition in the above post.
The last thing the Minnesota legal community needs is more incoming attorneys. I already take issue with the fact that our state is one of only two or three that allows attorneys from other jurisdictions to waive in and become licensed here if there MBE score is high enough. Allowing individuals to take the bar exam and become licensed without having attended an ABA accredited law school would only further weigh down an already over saturated market. I unfortunately, but admittedly by my own choice, am one of the people who decided on law school, paid all in loans, and am now paying off a 100K debt. I took a judicial clerkship my first year and am now in the process of looking for a job when my clerkship ends in August. I have been told by employers in interviews that they are getting 200-400 applications per opening. We do not need more lawyers! MN should be looking at ways to make admittance to the bar here more difficult, not easier.
I am a 2007 admittee. I have watched in fascinated horror as excellent newly admitted attorneys, many of whom are second career professionals, struggle to find any job, much less the ridiculously low starting average wage for attorneys in Minnesota. I know many who are temping, many who are hiding in clerkships, and a few who out of necessity, started their own practice.
I have three jobs, all of which are legal related, two of which are part time, and only one of which involves actual practice. Even with this, I barely make mid $50K two years out. Some of this is the economy, some my own skills and experience, but a significant part of it is the crazy glut of lawyers in this state. It is truly negligent if not fraudulent what the ABA and the law schools have done to this practicing community out of greed. Shame on them all, and shame on me for not being cynical enough at the start of my legal journey to realize what a scam this system is.
There are enough lawyers in this state as it is. If anything, we should shut down Hamline and maybe Mitchell, and definitely make it harder for out-of-staters to be admitted to the bar. Lets keep the profession selective. Enough with the tier 4 graduates and non-accredited lawyers as members of the bar. It is too easy to become a lawyer as it is in Minn.
I disagree with the previous comments.
First, Dorsey wouldn’t spend the time and money on litigation just b/c they are “bitter” about an experience an attorney had 10 years ago. Additionally, to work at Dorsey requires incredible law school credentials. To suggest that the motivation is so Dorsey can hire non-ABA law grads shows an ignorance of the workings and hiring at corporate law firms.
In regard to the complaints that this would make it harder for lawyers to find a job, that is an indefensible argument. Yes, it is good for the lawyers to have a monopoly on jobs. But why should society allow us to limit our numbers solely b/c it means we get more money? It doesn’t. It is good for dentists that the ADA has limited their numbers for the purpose of increasing their salary — they now make more than primary care physicians. But is it good for all the people who don’t have dental insurance and can’t pay $500 for a filling? No, it doesn’t. Would you support the idea of not letting out-of-state accountants come work here, b/c to do so would make it harder for unemployed accountants in MN to find work?
However, the commenters make the good point that law school education causes incredible debt and the jobs don’t pay enough. The answer is not to have less lawyers, the answer is to have cheaper law schools. Let people get law degrees online for $1000, and then take the bar. This wouldn’t drive down the cost of legal services anyway, b/c like the previous commenters noted, there are many law grads unable to find legal employment right now as it is. All this would do is cause law school debt to be lower. The proof is CA. They allow people to take the bar after “apprenticing” at a law firm for several years. CA salaries are no different than Minnesota salaries. Corporate law firms pay a lot, but most new grads aren’t making much.
Should we also allow individuals to practice medicine without attending medical school? It would likely make healthcare cheaper and more people would be able to afford some level of care. It will also help to drive down the costs of medical school and force greater competition. Other than the malpractice problem, loss of research and new medical techniques, the overall deterioration of public health, and lack of competent medical care, it is a great idea.
If we allow anyone who takes the bar to practice the public will suffer enormously. We will have lawyers completely unprepared to practice. People need to realize that the bar exam, in its current form, is more of a final safety check for entering the profession. Grinding it out for three years of law school, working in clerkships, writing papers, meeting deadlines, and dealing with pressure is what helps prepare you for law…not the two-day test at the end.
1. The ABA accreditation requirement and the bar exam act more as a barrier to entering the practice of law than to ensure the quality of the law that is being practiced. No one who is honest with themselves thinks otherwise. I’ve been a judicial law clerk for 2 1/2 years and I speak from experience when I say that there are so many bad lawyers practicing in this state that law school accreditation and passing the bar exam don’t guarantee a thing. I know 3 competent lawyers who failed the bar exam the first time. Opening up the bar exam to non-accredited law school grads would not make a bit of difference in that respect.
2. Law school teaches you to understand what the law is, where it came from, where it may be going. It teaches you to think like a lawyer. It does NOT prepare you to PRACTICE law. The skills required to practice well are not teachable in a classroom. Some have those skills naturally, some don’t. Some never develop them no matter how long they practice.
4. Law schools are controlled by the faculty, which is made up mostly of ex-lawyers who didn’t like practicing, but prefer research and teaching. There’s nothing wrong with that, but do we really expect them to do what’s best for law students or the public rather than what’s best for themselves? They have a pecuniary interest in extending this absurd licensure system for as long as they can.
5. Practicing law (with the exception of criminal law) should be open to whoever can pass the bar exam (until we can get rid of it as well.) Could the admission of law grads from non-ABA approved schools be worse than pro se representation, which is exploding due to the law’s failure to change with the times and the terrible economy?
6. I’m starting a solo practice in September out of necessity. I’ll see you in court.
There is another option: Let everyone with a law degree, whether or not it is from an ABA or non-ABA school, apply for admission, but make the Minnesota bar exam much harder to pass. The current 91% passage rate is far too high (the third highest in the country next to OK and MT: see http://www.ilrg.com/rankings/law/index.php/1/desc/StateOverall), especially given the increasing number of people seeking admission. Anyone who took the MN bar can’t honestly say that the essay questions were anywhere near as rigorous as most law school exams. The bar exam should be more than that. What the overall passage rate should be is another question. Does 75% seem too low?
California does allow lawyers from non-ABA law schools, but they also have, arguably, the hardest exam (65% passage rate).
I’ll concede that the bar essay Qs are easier than law school exam essay Qs. However, there is absolutely no reason to believe that the bar exam weeds out people who shouldn’t practice law. How does preparing for law school exams prepare someone to practice law? Only a combination of academicwork along with real, supervised lawyering and mentoring can do that.
Making the bar exam harder would achieve one goal lots of lawyers agree on: reducing the number of new lawyers. This is the reason the bar exam exists in the first place. Wisconsin is the last state with diploma privilege. Is anyone going to argue that the lawyering in WI performed by UW/Marquette grads is somehow worse than lawyering in MN performed by grads of UM/WM/Ham/UST?
BTW, I scored 160 on the MBEs (in MN) and 159 on the essays (in WI where everyone receives scores) so I like to think I’d have passed even a ‘harder’ bar exam. Does that make me a good lawyer?
[...] 7, 2009 by Mark Cohen There is an interesting conversation going on in the comments section of a prior post on the topic of whether or not the Minnesota bar exam is too [...]
Lackey,
I don’t disagree with you in that passing the bar exam does not mean you will be a good lawyer, but my comment did not suggest that it did. Regardless, that a passing score on the bar does not automatically make one a “good” lawyer is not inconsistent with my point that it should be harder to pass.
I disagree, in part, with your comment that the bar exam fails to weed out people unfit to practice. The bar is pass-fail, and is not graded on a curve. If you meet the minimum in analyzing a legal problem, then you pass. If an individual cannot apply “passing” legal analysis to the problems, for whatever reason, that to me is a fair reason to exclude someone from a license to practice. Does it ensure “good” practitioners? Of course not, but I don’t think you can convince me that those who cannot pass the Minnesota bar should be allowed to practice law before they earn a passing score. In that sense, the bar exam does succeed in a fair, objective weeding out of individuals.
I am also not sure if you are arguing that the barriers to entry should be eliminated entirely or just redefined or shifted to another point in the process of legal education. A apprenticeship model, like you suggest, is a great concept, but I don’t think that would eliminate the issues associated with barriers to entry. Wouldn’t it have to be like becoming a doctor? (Med School, internship, residency, etc.). In that case, the barriers to entry occur at the front end. The number of students allowed to enroll in medical school is controlled by the AMA. Wouldn’t we also want to control the number of people that participate in the law version of such a program for both practical reasons and to ensure the best candidates get an opportunity? How would we accomplish those decisions? Bar exam score? Law school grades? Law school rank? LSATs? Other? would that still unfairly exclude some deserving people from getting a chance? would bad practitioners still get through?
I also think, in general, law schools are not as tone-deaf or nefarious regarding the preparation their students as you suggest. I think many schools realize that the model of legal education needs to change and they are pumping resources into things like law clinics, etc. They want satisfied grads who feel that the law school educated them well.
I’ll concede that you never suggested that my passing the bar exam with relative ease makes me a “better lawyer” than someone who barely passed. But that doesn’t relieve and those who support the current licensing system from the burden (given the current economic reality facing new attorneys) to show how law school as currently designed (to meet ABA standards) and the bar exam provide a better product than some other system (or no system at all) would provide.
You state that one who can’t “meet the minimum in analyzing a legal problem” can be “fairly denied a license to practice law.” There are two big flaws in that assertion. First, it assumes that the skills required to pass the bar exam somehow are strongly related to the skills required to practice law. No one has to my knowledge shown a link between one and the other. Second, what of those who fail the exam, then pass it by better honing the skills needed to pass? How exactly were these people not competent to practice law before they passed but competent after they passed?
Let’s consider what skills one must bring to the practice of law. Some of them one is required to develop in law school, including critical, analytical reading, and writing. The Socratic Method arguably develops the ability to think and respond in an informed fashion to direct, unexpected and challenging questions. But let’s think about what working lawyers spend most of their time doing. They meet with clients. They meet with opposing counsel to negotiate. They read statues and rules. They meet with judges. They supervise support staff and take supervision from senior attorneys. They look for case law that supports their client’s position. They write pleadings, contracts, and letters. And some of them try cases in court. I don’t recall a single REQUIRED class in law school (Hamline, if anyone cares) that developed the skills needed to do those things well. For example, why is the only serious legal pleading one must complete in law school an appellate brief? How many appellate briefs does the average attorney file each year? A 1L spends a YEAR studying federal civil procedure. How many attorneys (as a percentage of all attorneys) work on a federal civil lawsuit each year?
I recall realizing with chagrin while studying for the bar exam that Bar/Bri was, with respect to the essay portion of the test, emphasizing not so much what the law is, but how to write an answer that would be easy for the grader to read and pronounce acceptable. It was then that I came to better understand why my Civ Pro professor seemed puzzled as he said to me in our meeting about my first semester grade, (B-, if anyone cares) “but you do so well in class…” It wasn’t that I didn’t understand the law - the problem was that I hadn’t yet learned how to write a “pleasing” exam answer. Please explain to me the link between that and the skills required to effectively advocate for a client. And I’m still waiting for the first multiple-choice-exam part of a legal proceeding.
I don’t think of the people who run the law schools as Montgomery Burns on “the Simpsons,” rubbing their hands together and plotting new ways to steal money from would-be attorneys. I merely suggest that life is much easier for them if the licensure system stays the way it is, so I don’t think we should expect them to lead the charge to radically change the system.
You’re right in that I haven’t clearly suggested whether the licensure system should be changed or abandoned. I think lawyers should be licensed. But law schools are trying to have it both ways. They want to be scholarly graduate schools (full of scholarly professors) and nuts-and-bolts training facilities (full of expert lawyers who are also expert teachers) at the same time. For that reason they do neither well. There should be academic graduate schools of law (where the student’s goal is not licensure) and lawyer-training schools (where the goal is licensure). Lawyer-training schools’ curriculum would reflect an understanding that the tools needed to practice law well are the tools not of the scholar (or the law exam or bar exam test-passer) but of the advisor, the risk manager, the negotiator, the storyteller, the leader.
And the bar exam should be euthanized.
To Anonymous -
I agree that the Twin Cities market is oversaturated with lawyers, especially with the recent addition of St. Thomas School of Law. If you advocate for shutting down Hamline and William Mitchell, would you also advocate for the U of M and St. Thomas to include part-time law programs? Currently, if an individual wants to attend law school and also work full-time Hamline and William Mitchell are the only options in the Twin Cities. Hence, students could be “good enough” to get into the U but if they have a full time career and do not want to put it on hold while obtaining a law degree, they are limited to what U.S. News selects as Tier 3 and Tier 4 schools.
The person who wrote this lacks understanding:
“There are enough lawyers in this state as it is. If anything, we should shut down Hamline and maybe Mitchell, and definitely make it harder for out-of-staters to be admitted to the bar. Lets keep the profession selective. Enough with the tier 4 graduates and non-accredited lawyers as members of the bar. It is too easy to become a lawyer as it is in Minn.”
Let me help. SOME U of M law students think themselves to be part of an elite club. They are not. They confuse their tax-subsidized standing in U.S. News Report as proof of their right to exist. It is not. All of us have met a U of M student (and Harvard/Yale students for that matter) who did not live up to their own hype. There is no significant gap in the bar passage rates between any of the law schools, no achievement gap between the U of M students and those law students who attend the other schools. U of M law is a good school. But it is not alone in MN. Stop reading your own press.
Somewhat late to the game here, but “Helping Anonymous Understand” is the one who needs some help.
UMN’s superior ranking isn’t due to “tax subsidies” - it’s due to the fact that UMN’s entering classes possess substantially higher GPAs and LSAT scores than any of the other three schools. The difference between a 165 median and a 156 median may sound like a mere 9 points, but that gap actually represents approximately 30-40 percentiles. We’re talking performers above the 90th percentile versus LSAT takers in the 50-60 percentile range. No contest here. And last I checked no one needs to prove “their right to exist.” What does that even mean?
He/She asserts righteously that there’s no gap in bar passage rates (Uhh - UMN’s passage rate is around 98% while the average in the jurisdiction hovers around 90%. What does that tell you?) and that there’s no “achievement gap” between UMN grads and the other schools. Let me know when Billy Mitchell starts placing grads as faculty members at Tier 1s or when Hamline starts getting SCOTUS clerkships. Or hell, even legal employment for the bottom half of the class at UST, WM, and Hamline would be a good start towards your claim that there’s “no achievement gap.”
Anyhow. Not sure that the original poster was the one who didn’t know what was going on. WM/Hamline/UST are the ones that should feel ashamed of their willingness to take $100000 and turn it into a degree with little to no employment prospects. And worthless “law schools” in California with 3% bar passage rates are a bad deal at any price. Don’t encourage attendance by allowing their graduates to sit for the bar here.
Regarding UMN Law ’09’s comments:
I took the LSAT in 2004 after two practice tests, achieved a 165 (94th percentile at that time). For two years now I have taught LSAT prep classes, including tutoring, single weekend and multi-weekend courses which increase LSAT scores an average of 5 to 10 points.
I was also a National Merit Scholar, second in my high school class of approx. 550, and had a 3.8 GPA going into law school. I clearly could have been a UMN law student. I wasn’t, I went to Mitchell. Know why? Arrogant younger students and no diversity/maturity of the student mix. I suspect you are under 30. I was a returning student at the age of 37, after running a multi-million dollar business for more than a decade. I’d put the wisdom of my choice of school against your hype for the U any day.
If you think the LSAT is a good prediction of achievement in law school, I heartily disagree. it is A prediction of achievement, not very statistically aligned, instead it operates to provide a barrier to entry, and a method of alloting scholarships. That’s it.
Also, I don’t think the 5 to 7 percentile difference in bar passage for UMN students says as much as you think. Statistics can be interesting. That 5 to 7 percentage points is a 7% difference in passage rate. Not very significant.
[...] Click here to see the full rebuttal posted by Savage attorney John Murphy. Here’s what I thought was the money quote from Murphy’s response: I clearly could have been a UMN law student. I wasn’t, I went to Mitchell. Know why? Arrogant younger students and no diversity/maturity of the student mix. I suspect you are under 30. I was a returning student at the age of 37, after running a multi-million dollar business for more than a decade. I’d put the wisdom of my choice of school against your hype for the U any day. [...]
You know, this would be an excellent opportunity for a ‘09 graduate to post something like:
“Hi, my name is XYZ, and I realize all this my school is better than your school stuff is pathetic. I’m a mature adult who plans to achieve on the merits of my own ability, not a sense of self-righteous entitlement. I welcome competition, and I appreciate criticism. I’m civil, and above this sort of thing. Please hire me instead of UMN Law ‘09. Thank you.”
Amen “Stay Focused.” Thanks for taking the high road, and reminding us that in a field that should be built on collegiality and mutual respect, it often doesn’t matter where you matriculated. What matters is the service we provide to our clients, the legal community and society as a whole.
I tend to get my feathers ruffled when I hear so much elitism coming from various other “young lawyers” (and here I mean experience-wise, not age-wise), when what we need is more supoort for each other in these challenging times.
In my practice, I have freely referred potential clients to my classmates, and have been blessed with referrals which help build my business. Together we lift each other.
And, believe it or not, I don’t ask them for their class rank before I do that.
Alabama has a state statute that allows graduates of Alabama’s non-ABA law schools to sit for the Alabama bar exam. This statute provides the academic requirements, law school admission requirements and allows graduates of out-of-state non-ABA law schools to sit for the Alabama bar exam if the home state reciprocates and allows Alabama non-ABA graduates to sit for their bar exams.
Petition vs. Legislative Act?