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Razing the Bar: The bar exam protects a cartel of lawyers, not their clients by Allen Mendenhall

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said, was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

Allen Mendenhall

Allen Mendenhall is the author of Literature and Liberty: Essays in Libertarian Literary Criticism (Rowman & Littlefield / Lexington Books, 2014). Visit his website at AllenMendenhall.com.

A Dirty Little Judicial Secret

USURPATION OF JUDICIAL POWER:

A practice has grown among the judiciary to reserve, exclusively, to a trial judge, the power of judging the law. This is not to say that judges, per se, refuse all knowledge of the Jury’s right to judge the law. Many courts have recognized this right. However, what the judicial branch, per se, does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so either (Sparf & Hansen v. U.S. 1895, 156 U.S. 102).

There are two primary reasons judges insist on being the only definer of the law. 1) Because they believe common jurors are just that – regular people that are not sophisticated enough to understand the law unless a judge explains it to them; 2) Judges do not want to surrender their self-granted power to attorneys.

Judges, officiate in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level – not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well.

When a jury judges the law it has been commonly called Jury Nullification. It could be better labeled, Jury Prerogative, a recognition of the juror’s right (duty) to judge the law as well as the facts of a case. Judging the law means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal.

Jurors do not have the license to judge a law to their personal standard or opinions. To allow one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

HISTORICAL BACKGROUND:

The 6th Amendment to the U.S. constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….” It doesn’t say by a judge; it specifies an IMPARTIAL jury. A government employee, using his or her powerful position to ‘charge’ or ‘instruct’ a jury, is violating the 6th, 9th and 10th Amendments of the U.S. Constitution. A jury that has been subjected to this usurpation of power is no longer impartial – it has been influenced to the judge’s uncontested bias.

Our Constitution, our rule-of-law, was written by laymen for laymen. No where in its articles or amendments is the judicial branch empowered to TELL a jury anything, much less how to apply a law. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge!

Our fore fathers realized that judges, being human, carry their own prejudices. Because of this, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, a practice has evolved where judges do testify in the form of their ‘instructions’ or ‘charges’ to the jury. It is during this ‘testimony’ – this propagation of their own power – that the judge will NOT tell the whole truth. The whole truth being a jury’s right and power to decide the constitutionality of a law.

Many precedent setting rulings, dating from the decade of this country’s inception to as late as 1972, have confirmed that Jury Prerogative is a bono fide right and power of a jury.

COMPARATIVE EXAMPLE:

Just for the sake of argument, let’s say that Public Law X makes it a crime to speak or write anything derogatory about any federal employee. Soon thereafter, your car is struck by a vehicle negligently operated by a FBI agent. In the heat of the moment and outraged that this bozo had damaged your new BMW, you call the agent an incompetent jerk whereas you are immediately arrested for violation of Public Law X.

You’re an honest person and do not deny that you made those comments. You place your faith in the fact that Public Law X is obviously in direct violation of the 1st Amendment to the U. S. Constitution. However, and for whatever reason the judge in your trial denies your attorney’s motions for summary judgement, i.e., that Public Law X is unconstitutional. At the conclusion of the trial the judge ‘instructs’ the jury that if they find that you did utter derogatory comments to a federal employee they, the jury, MUST find you guilty as charged. Of course, the jury has the right and power to determine that Public Law X is in violation of the First Amendment. However, if the judge refuses to tell the jury that they have this right and your attorney is not allowed (ibid, Sparf & Hansen) then that leaves you in a shooting war – and without a gun.

JURY PREROGATIVE – WHAT IT IS/IS NOT

Circa 1988, a group of citizens formed a grassroots organization, The Fully Informed Jury Association (www.fija.org). Their intention was to inform jurors of their right to judge laws. However the FIJA misinterpreted the meaning and definition of Jury Nullification/Prerogative and have skewered, twisted and misapplied this 200 year old concept. They promote the notion that juries have the right to decide if a law is good or bad as judged against their own (individual juror’s own) standards of good and bad. (http://fija.org/)

In a recent case, the California Supreme Court (People v. Williams, S066106, 2001), found that a juror who told a trial judge, “I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason.” This juror raised no issue of constitutionality – he was applying the law to his own personal standards. The juror was replaced by an alternate in what has been called a “Jury Nullification” case. It was not. There was no issue of constitutionality at bar.

The California Supreme Court correctly upheld the dismissal of the juror for applying his own standard to what the law meant. To evoke Jury Prerogative, a juror must believe the law under which a defendant is charged is unconstitutional. For example: if a defendant is charged with violation a law “A” and a juror votes for acquittal because this juror believes that law “A” is unfair, defective, unjust, not a good law or the law is stupid, the juror is not doing his duty. However, if the juror is convinced that law “A” is in violation of a state or a federal constitutional guarantee, then the juror is obligated to vote not-guilty.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

POSSIBLE REMEDIES:

  • Demand a full legal representation. Forcing a defendant to become his own lawyer just for the sake of arguing the law’s constitutionality is a clear violation of the 6th Amendment right to counsel. In other words, it is well established in case law, that the accused is entitled to representation at ALL levels of trial including even pre-trial interrogation and post-trial sentencing. Therefore, how can the courts continue to support Sparf (ibid) which clearly forbids representation at a most critical stage of a trial – the “instructions/charge” to the jury? This quirk of forbidding attorneys to argue the law before the jury, but permit pro se testimony seems to have escaped the logic of the judicial system. By this same reasoning, if the courts are permitted to bar an attorney from presenting evidence, testimony and/or summation concerning the constitutionality of a law, then what is to prevent the court from forbidding an attorney from arguing the credibility of a witness or any other issue before the jury? No doubt the trial judge will deny your request thus allowing you to appeal to a higher court where this matter should be settled.
  • Join the JUDICIAL ACCOUNTABILITY INITIATIVE LAW organization. J.A.I.L. is working to enact Special Grand Juries to sanction judges by levying fines, forfeitures and possible removal from the bench against judges who usurp their powers. (www.jail4judges.org).
  • Consider filing suit against your local Jury Commissioner to require the Jury Prerogative option be disseminated to prospective jurors.
  • If you are charged with a crime and you can show the law under which you are charged is in violation of your state’s or the Federal Constitution, demand a jury trial and mount a challenge to Sparf & Hansen v. U.S.
  • If you are not successful with your challenge to Sparf & Hansen at the trial level, have Plan ‘B’ ready: Consider acting as co-counsel. Because the judge will not advise your jury of their right to judge the law and also refuses your attorney that power, your only option might be to tender the summation yourself.

Acting pro se, you can say almost anything to a jury as acknowledged by the 1972 case, U.S. vs Dougherty (473 F.2d, pg 1137):  “Thus, a defendant’s ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation….”

Sidebar: “The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, Chief Justice U. S. Supreme Court (1941). “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….” (U.S. vs. Dougherty, 473 F.2d 1139 [1972]). “The jury has a right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court (1789).

The jury does and always has had, in the words of Justice Holmes, “the power to bring in a verdict in the teeth of both law and facts” (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).

© 2014 Chuck Klein www.chuckklein.com

EDITORS NOTE: The featured image is a screenshot of “A dirty little secret” from Frasier episode, “The Show Where Sam Shows Up” in 1995 courtesy of Paramount Television and Grub Street Productions.