Tuesday, July 5, 2011

Why Isn't IP on the Bar Exam?

I'm studying for the NY bar this summer, which means I spend every morning as a BARBRI girl, watching helpful reviews of things like the difference between possibilities of reverter and vested remainders subject to total divestment, or all the elements of all the different crimes you might commit by killing someone in New York vs. at common law vs. under majority statutory rules. (Fellow bar studiers: I've found Anki to be a great flashcard program.) But one thing I am not studying is the subject I focused on most in law school—intellectual property law—because it is not tested in NY, or in any other jurisdiction that I'm aware of. Why is this?

The multistate bar exam (MBE) covers six subjects: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts (which, aside from Evidence, are typical 1L classes). The New York day covers these subjects as well as Business Relationships, Conflict of Laws, New York Constitutional Law, Criminal Procedure, Family Law, Remedies, New York and Federal Civil Jurisdiction and Procedure, Professional Responsibility, Trusts, Wills and Estates, and UCC Articles 2, 3, and 9. (Each state has its own list; for example, California also tests Community Property.)

How are the tested subjects chosen? According to this student note, Massachusetts had the first written bar exam in 1855, but written exams did not gain substantial acceptance until the 1890s, and by the 1920s they were used in every state. Presumably, inertia has kept states from updating examined subject areas very often. States probably omit IP because it is primarily (1) federal and (2) statutory, although neither of these seems like a compelling reason—and Pennsylvania now tests Title VII, ADA, and ADEA, so I see little reason that states could not add some basics about the Patent Act.

As it is, the NY tested subjects do not correlate very well with what NY lawyers are likely to see in practice: According to martindale.com, there are 752 lawyers in NY who list torts as a practice area, 982 for crim, 208 for con law, and 583 for wills. In comparison, there are 2095 lawyers who list intellectual property as a practice area, 1856 for labor and employment law, and 1452 for tax—subjects not tested on the NY bar.

I am not the first person to notice that there are major omissions; for example, see Seth Chandler's observation in a 2007 Conglomerate post:
How can it possibly be that in 2007, bar licensing authorities persist in hurting business and hurting the public by not requiring lawyers to know essentially anything about federal statutory law? Here is a list of subjects about which one basically needs to know nothing in order to practice law in almost every United States jurisdiction: (1) administrative law; (2) antitrust; (3) civil rights law (1983, ADA, etc.), (4) environmental law (Clean Air, Clear Water, Endangered Species, CERCLA, OSHA, etc.); (5) Health Law (ERISA, HIPAA, COBRA, Medicare, Medicaid); (6) immigration law; (7) intellectual property law (copyright, patents, trademarks); (8) labor law (NLRA); (9) maritime law. Some states require virtually no knowledge of tax or bankruptcy.
I disagree with Chandler, however, that these omissions "disabl[e] lawyers in an embarrassing way," because lawyers aren't relying on bar exams to teach them what they need to know for practice. In fact, not looking up the details would often be malpractice. All practicing lawyers need is an awareness of potential issues and the legal research skills to look up the answer. I'm not sure I agree that bar exams are a good test of these basic lawyering skills, but it also seems highly unlikely that we will follow calls to abolish the bar exam. So as long as we have these exams, why not try to focus them on the areas that lawyers are most likely to encounter in practice? I'm not saying that subjects like criminal law should be removed from the bar just because there are more IP lawyers than crim lawyers, but maybe the exam could focus less on specific minutiae and more on spotting the big issues—i.e., why not choose breadth over depth?

A final explanatory note for non-patent readers, since more than one person has essentially asked me, "Isn't that what the patent bar is for?" The "patent bar" is really the Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office, and it is not like a state bar exam. All you need to take the patent bar is a bachelor's degree in a technical field, not a J.D., and passing the exam allows you to "prosecute" (i.e., write and submit) patents before the PTO. It does not allow you to litigate patent cases or provide any legal advice—for that, you need to take a state bar exam. To call yourself a "patent attorney," you need to pass both the patent bar and a state bar, but many patent litigators and corporate IP lawyers have not taken the patent bar.


  1. After a number of email and Facebook conversations concerning this post, I wanted to add a few more thoughts:

    First, my last paragraph was meant as no slight to patent agents, who often have advanced technical degrees and industry experience, and who have to be familiar with the complex rules of the Manual of Patent Examining Procedure (MPEP). I don't think patent agents are less qualified than patent litigators who haven't taken the patent bar - they are just differently qualified, and people shouldn't assume that someone graduating from law school with an interest in patent law will be taking the patent bar in lieu of a state bar.

    Second, even though I don't think lawyers are embarrassing themselves with lack of patent knowledge (rather, I think the quality of patent practitioners tends to be very high), I sympathize with Seth Chandler's concern that students are choosing which classes to take in law school based on what is tested on the bar. I don't think a student who took Wills but not IP is going to be a "better" lawyer than a student who took IP but not Wills, and I think it is sad if the current system is causing some students to make this choice even though they would prefer IP.

    Finally, I recognize concerns that the bar mainly serves as a cartel facilitation mechanism, although I think the people writing bar exams honestly believe the bar serves a more useful purpose. But the point of my post is not about whether we should have bar exams or not - my question is, if we take the bar as a given, is there any principled reason for not testing IP?

  2. Another comment on my martindale.com statistics, in response to feedback from another reader: apparently many torts lawyers don't list "torts" as a practice area. But there are still only 1634 "personal injury" lawyers in NY - fewer than IP lawyers. And my point was simply that IP is hardly an obscure field, especially compared with things like future interests.