Monday, July 19, 2010

The Bar-Exam Ritual: Good or Bad for Legal Writing—The Hidden Meaning of “Memorization” among Exam Abolitionists

While law-school exams harm law students' writing, the bar exam probably helps by rewarding legal understanding. Yet, to judge from the discussion boards, defenders of bar exams are the minority. A debate arose when Elizabeth Wurtzell, author of the best-selling novel Prozac Nation, called for abolishing bar exams. Wurtzell recently graduated from Yale Law School, but she failed the bar exam on her first try. Wurtzell is convinced the hiccup in her career was the bar exam's fault. The Volokh Conspiracy (Richard Epstein and John Yoo on the Bar Exam) agreed with Wurtzell's conclusion; posters to several law blogs discussing Wurtzell's proposal wrote hundreds of comments in a few days.

On the question's merits, the bar exam is to law-school exams as the undergraduate final examination is to a weekly test: cramming for weekly tests and law-school exams promotes shallow learning and unproductive rote memorization. Accurate research and perspicacious writing, as well as intelligent consumption of the work product, require deeper legal knowledge, fostered by an integrative bar exam more than by narrow law-school exams. In further contrast to bar exams, law-school exams are distinctly bad for legal writing because prolixity pays, whereas for the bar exams' broader subject matter, habits of succinct expression prevail.

Bar-admitted lawyers don't have a tangible stake in this discussion, and nobody claimed, from a civic-minded perspective, that the bar exam kept gifted lawyers from practicing. Then, why so much interest in this topic? Posters' themes answer the question by the bias they reveal. Although bar exams aren't intended to be memory intensive, posters often characterized the bar exams as tests of memorization. Most posters refused to acknowledge that bar exams test for issue-spotting skill rather than memorized detail. Posters either forgot or disagreed with professors' usual advice against memorization as a study strategy.

Their themes suggest that posters were engaged in a tacit defense of their ancient choices of law-school goals—subtle, too often unconscious decisions, with unforeseen consequences. "Memorization" is a slur used to characterize and reject mastery of subject matter as the goal in law school, instead measuring success by grades and accolades—capitalizable rewards (advancement). As common practice in law, terms often mean their ordinary opposite (e.g., continuing a trial means interrupting it; a judicial error so severe that any efforts to undo it must be deemed futile isn't an irreversible error but a reversible one). Law students, present and former, adopt this naming practice and term learning substantive law and legal reasoning memorization, implying, ironically, that cramming for law-school exams is reasoning. The majority embrace the advancement theory of success: they assume that subject mastery will be either the fruit of their present efforts to advance their careers or the fruit of their future career advancement, the latter's enjoyment beginning years before the fruit's harvest. A minority focus on mastering the substance and reasoning processes of law and thrive on the Socratic Method. This group believes that top grades are either dispensable or inevitable.

The two most famous bar-exam abolitionists participating in the discussion—Elizabeth Wurtzell and John Yoo (yes, Yoo the war criminal)—confirm that opposing the bar exam defends practicing the advancement theory of success in law school, warding off regret about that practice. Yoo's weak legal understanding and his demonstrated motives both make the point. Yoo's "torture memos" betrayed a grasp of basic law so tenuous it masked the willfulness of his deceit. Yoo's contribution to the bar-exam discussion stated his disingenuous agreement with Wurtzell that bar exams mostly test memorization. Yoo's comment demonstrated his dedication to advancement and self-promotion because, as one poster remarked, Yoo was greasing his connections with former-classmate Wurtzell.

The fit with this self-justification hypothesis about stances on the bar exam's value is even better for Wurtzell, who despite her Law School Admission Test score of 160, received honors at Yale Law School, a miracle of overachievement. She revealed her lack of skill at argumentation by advancing the painfully weak contention that the "best" often fail bar exams: Wurtzell maintained the "best's" inability to follow "meaningless" rules is a virtue. Professor Richard Epstein demolished this argument in one line: "I am never hired to explain rules that everyone understands." Most revealing in expressing her advancement orientation, Wurtzell's essay fulsomely praised her new boss.

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