What's A Bar Exam For?

A colleague sent me this link to the Volokh Conspiracy two days before I met with the Virginia Board of Bar Examiners: http://volokh.com/posts/1248671477.shtml. Whatever one thinks of Prof. Somin's ultimate conclusion (that bar examiners be required to take the bar exam every year), this statement about the purpose of the bar exam is simply incorrect: "If passing the exam really is an indication of superior or at least adequate legal skills . . . ."

No matter how bar examiners characterize the bar exam, its purpose can be no more than to weed out the incompetent. I doubt that a test could be devised to determine if someone is competent to practice law; the best we can do is to find out if someone is hopeless. The bar exam is about falsification, not verification. See Nassim Taleb's "The Black Swan" for a popular discussion of the difference.

Of course the bar exam doesn't weed out everyone who will be a danger to his clients. And it very well may identify false negatives; not everyone who fails is incompetent. But designing a better bar exam requires at least that we understand what it's testing.