Wednesday, May 6, 2020
The Bar Exam is in the front of everyone's mind right now. When will it happen? Should we change the exam? Does the exam actually measure competence as lawyers? Should we be using diploma privilege instead?
All of these are excellent questions, and handled in much more serious papers, usually by our very own Marsha Griggs!
However, I wanted to take a bit of a fun look at the history of the Bar Exam. I have been reading Robert M. Jarvis' An Anecdotal History of the Bar Exam (9 Geo. J. Legal Ethics 359 (1996)) and wanted to share some highlights.
- Massachusetts became the first state to offer a written exam in 1855. Prior to this, states would issue oral exams, often with a Judge in the district that the lawyer wished to be admitted, or with a lawyer already admitted to that bar. Massachusetts began the written portion for those that couldn't take the oral portion, but in 1876 Suffolk County (the county that Boston, MA sits in) began requiring lawyers to pass a written examination in order to be licensed. In 1877 New York introduced a written exam in addition to the oral exam.
- The oral exam seems like it was less stressful and rigorous than what applicants go through today. Huey P Long – former Gov of LA - passed his oral examination easily. When asked by George Terriberry, an admiralty practitioner, what he knew about admiralty, Long replied” Nothing." When further asked about how he would handle an admiralty matter, long answered “I’d associate Mr. Terriberry with me and divide the fee with him.” Long passed.
- Abraham Lincoln was a bar examiner, and judged to be a very lenient one. According to Len Y. Smith, in Abraham Lincoln as a Bar Examiner, B. Examiner, Aug. 1982 (An article I'm currently trying to find), Jonathan Birch of Bloomington relays his experience with Lincoln. Lincoln essentially asked him "how long have you been studying?" with Birch responding "Almost two years." According to Birch, Lincoln's response was "By this time, it seems to me," he laughed, "you ought to be able to determine whether you have the kind of stuff out of which a good lawyer can be made." Then Lincoln asked for a definition of a contract, and then sat on the edge of the bed and began to entertain Birch with stories. Then, took him to the clerk, and gave the clerk a note saying "My dear Judge:- The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be. Yours, Lincoln." I am certain almost all of my students would pass either of these oral exams. I have also heard that Lincoln once examined an applicant from his bath tub. I love this story, but have yet to be able to find a reliable source, so take that with a grain of salt.
- Before you think that all oral examinations were easy, and most were just a mere formality, they were not easy for everyone. Clara Foltz, the first woman admitted to the CA bar, was administered a 3 hour oral exam. In addition, this "mere formality" was usually a way to find out the applicant was likable, or meshed well with the current bar. You can imagine how this created inequity at the bar.
7 states allow you to “read” the law – California, Maine, New York, Vermont, Virginia, Washington, Wyoming – this means aspiring lawyers study to be a lawyer and take the bar without attending law school. This is what Kim Kardashian is currently aspiring to do. I can tell you, it isn't easy!
It used to be that 32 states allowed for diploma privilege. Currently only WI allows this. It was abolished in CA in 1917, and most recently, Mississippi in 1981, Montana and South Daktoa in 1983, and West Virginia in 1988.
New Hampshire was the first state to use a permanent board of law examiners. This occurred in 1872
KY and VA used to have strict dress codes of business attire. While they still have dress codes, they are not as strict as they once were, which required women to wear skirts and nylons.
In 1985 Laura Beth Lamb, a lawyer with the securities and exchange commission, dressed up like her husband, Morgan Lamb, to take the California Bar Exam for him. She was 7 months pregnant, and diabetic, and passed the bar with the 9th highest score on the exam. However, when she was found out she was disbarred, so please don’t try this one. (Also, on a sad note, she claimed he forced her to sit for him after he failed the bar, and threatened and abused her.)
In July 1985 hundreds of bar exams from the New York State bar disappeared without an explanation.
Prior to the 1980s, it was more common for states to use geographical exclusions to limit bar admissions, but a series of cases in 1980 struck down suck exclusions.
I hope this gives you a bit of a fun break from the craziness that is the current bar exam!