The Uniform Bar Exam and Its Impact on Federalism

May 12th, 2015

I was largely agnostic about New York’s decision to adopt the Uniform Bar Exam until I read Erwin Chemerinsky’s editorial urging California to do the same. A single sentence drew my attention:

But the truth is that basic principles of law do not vary from state to state.

From a substantive perspective, this statement is wrong. Certain areas are largely standardized nationwide (criminal procedure, constitutional law, or contracts). These are subjects where the Supreme Court has intervened to federalize the law, or uniform codes were adopted in nearly all states. However, other areas of law are extremely localized, such property, family law, or trusts and estates. (These are probably the classes Chemerinsky refers to as “dull.”).

On a deeper level, this comment I think reflects an subtle disregard for the values of federalism. States have and continue to handle a wide array of legal issues differently. And this is something that should be celebrated, not swept aside. If law students are trained to believe that there is no difference between laws of different states, then an entire generation of lawyers will have even less regard for the values of federalism, wherein the states can serve as laboratories of democracy. There is an importance in State A and State B being able to approach the same principle of law in different ways. Prioritizing a uniform bar exam will diminish respect for that value.

Perhaps it is true, as the Dean┬ánotes, that “lawyers can learn the quirky specifics as they go.” But we should at least acknowledge there are important difference between the law, and this is a good thing. This is not to say the Uniform Bar Exam is a good or bad idea–frankly I haven’t considered all the costs and benefits. But it is wrong to chuck aside the fact that states do handle questions of law differently.