The Right Coast

December 05, 2005
That had to hurt
By Tom Smith

The WSJ runs a front page story today on former Stanford Law School dean Kathleen Sullivan's failure on the July 2005 California bar exam (here; subscription req'd):

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan.

Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist.

The California bar exam has created misery for thousands of aspiring and practicing lawyers. Former California Gov. Jerry Brown passed on his second try, while former Gov. Pete Wilson needed four attempts. The recently elected mayor of Los Angeles, Antonio R. Villaraigosa, never did pass the bar after failing four times.

[Kathleen Sullivan]

But it's unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. "She is a rock star," says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. "Practically every lawyer in the U.S. knows who Kathleen Sullivan is." If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. "The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it."

Ms. Sullivan, 50 years old, did not return phone and email messages seeking comment. Her firm said she wasn't reachable over the weekend because she was at a remote location.

I would guess this is going to be talked about in California law school circles for a while. Apparently this last bar season was pretty nasty; lots of failures. The test aimed at lawyers licensed in other states, as Sullivan was, had only a 28 percent pass rate.

I knew Kathleen (or Kathy as she was then called) at Cornell, where she was two years ahead of me. Though she treated me like something unpleasant that had crawled up onto her shoe that last time I saw her, in one of the Senate office buildings in DC, where she was testifying on behalf, I think, of artists whom the NEH or somebody did not want to fund, and I was just trying to make the world a little safer for bankrupt asbestos companies, I would have to admit with everyone else that she is a brilliant lawyer. Undoubtedly she did not study for the exam, and the bar tests mostly useless knowledge, not IQ. The hypothesis that the exam for out-of-state lawyers is designed mostly to keep them out of California, strikes me as plausible.

My bar exam was a fairly unpleasant experience. I had been out of law school three years and took it stone cold, in retrospect, a stupid decision. It was the Pennsylvania bar, by some people's reckoning (such as New Yorkers) not a bar at all. If you scored above a certain number on the MBE, the examiners, it was said, would not even bother to read your Pennsylvania law essays, and, more to the point, you could waive into the DC bar. So, I cleverly signed up for the Pennsylvania bar and took it in Carlisle, where the Redskins have their summer training camp. I even found a nice B and B to stay in. I figured I might as well make the experience as tolerable as possible, and I suppose it was. The nasty part was the exam itself. I pretty much had to infer the correct answers from first principles -- what would be the efficient rule? -- since my knowledge of substantive law was sketchy, to say the least. I passed and got a high enough score to waive in, no huge accomplishment, but I felt like I might have permanently injured some brain muscles in the process. Over the next four years I learned some corporate law the hard way, by realizing I had to, and in a hurry. But enough about me. How did you enjoy your bar?

SECOND THOUGHTS. Welcome Corner readers. I have been thinking more about this, and for what little it's worth, I just want to share my sentiment that something here does not add up. Yes, I am suspicious and paranoid by nature, and my garage contains an unusually complete collection of things like canned food and gas masks. But that said, I feel that something here does not add up. Sullivan was legendary at Cornell for her essay exam skills. She got a first in PPE as a Marshall Scholar at Oxford, a degree awarded entirely on the basis of essay exams taken over a gruelling week. I don't know, but I bet her grades at Harvard Law were very good. By some accounts, the out of state lawyer bar exam in California, which is based on essays only, does not require so much knowledge of substantive law as the ability to write essays. And I'm told there was probably a con law question on the exam. So at first cut, something seems very arbitrary here. I honestly think this should be investigated, any bad karma payback from the Bork hearings notwithstanding. (e.g., Maybe the questions were out of the mainstream?) This is California, and corrupt protection scams are not unknown. I would not be shocked if someone just decided to fail a few hundred examinees to meet some quota, or some meat-headed grader gave an "F" because the essay was too long, or used to many big words, or something more byzantine than that, as in, "forget it, Jack. It's Chinatown." But maybe not. As I say, I am a suspicious sort.