05 April 2006

On Bar Regulation

In December, Professor Solove argued persuasively that the bar exam should be abolished.

One big problem with the Bar is that it functions so as to make it very onerous for lawyers to move to a different state. Thus, Sullivan is already licensed to practice in New York and Massachusetts. She has already passed the Bar. But she many years later because she wants to practice in California she now must pass an exam filled with a bunch of irrelevant questions. In fact, the longer one practices and the better one knows the law, the worse one will do on the Bar Exam. That's because the Bar Exam bears so little relationship to law practice, and as they tell you in BarBri class, thinking on the Bar Exam will hurt you, not help you. Sullivan's problem was that she didn't waste enough hours memorizing the often obsolete and reductive rules for the Bar Exam. Indeed, any practicing lawyer or law professor who doesn't have a lot of time on her hands to waste would encounter a similar problem. She probably thought she knew the law and had a ton of legal experience — but this would hurt her in the exam, not help her.

"Abolish the Bar Exam" (05 Dec 2005). I agree with Professor Solove. My main objection is that he does not go nearly far enough.

Let's consider, for a moment, a hypothetical lawyer in New Mexico who represents artists and photographers. (New Mexico is home to a number of thriving visual-arts centers, colonies, and loose affiliations.) With very, very rare exceptions, New Mexico law will not help him represent his clients.

  • If his clients are getting their works published in magazines and books, they'll almost certainly find New York choice-of-law clauses in their contracts… and arbitration clauses that New Mexico probably wouldn't enforce, but New York almost certainly would.
  • If his clients are sued for defamation, infringing rights of publicity, or invasion of privacy, they will probably be sued in the "victim"'s home court. In this day of Internet exhibitions and international shipments, the chances of this being in Santa Fe or Albuquerque are vanishingly small.
  • The Tenth Circuit's vision of copyright law is probably the least-well-developed of all of the geographic circuits (which, to my mind, supports sending copyright matters to the Federal Circuit, but that's getting a bit far afield).
  • Perhaps most disturbingly, if a gallery or publisher that is holding some of that artist or photographer's works files for bankruptcy, it will almost certainly be outside of New Mexico.

These are just the obvious difficulties. They are perhaps more obvious with New Mexico than elsewhere, but even relatively large states (like Illinois, Texas, and Pennsylvania, to name three with which I have personal experience) can create some interesting problems in the inconsistency of their domestic law with the law of other fora that dominate in certain segments of the entertainment and/or publishing industries. Perhaps my pre-lawyer experience in the military sensitized me to the reality of choice-of-law issues; perhaps it's just that Illinois is not exactly a hotbed of publishing-related law, despite the presence of several publishing firms in the Chicago area; but I've found I know New York contract law better than I do Illinois contract law. For that matter, I know California and Tennessee contract law better than I do Illinois contract law. And I definitely know almost nothing about Illinois commercial real estate law, garden-variety criminal law, and a variety of other subjects that are tested on the Illinois bar exam.

I would prefer abolition not just of the bar exam, but of state regulation of lawyers. The reality is that there is almost no area of law left in which there is no chance that a foreign jurisdiction's law could be the correct rule of decision. If we're going to insist on continuing with our internal choice of law problems—and, absent considerable recasting of the Constitution that I don't see as justified (and can't imagine happening), there is no way to do away with them—then maybe we should get individual states out of regulating that which they disdain. Professor Solove was too polite to emphasize the anticompetitive aspects of state bar regulation; I'm not.