Why bar exams ruin legal education

This week, another batch of law students will have wasted an extra year of their lives to study for the month-long bar exam. This is in addition to four years of law school where every moment was defined by the bar. It is high time the Philippines got rid of its unique obsession with what was supposed to be a simple licensure exam that mutated into a rite of passage and national spectacle.

We Filipinos do not realize that we are the only society that banners bar topnotchers on the front pages of newspapers. My American classmates in Harvard Law School openly said that every point they scored above passing in the New York bar represented eight wasted hours of their lives. Our bar reviewer stressed that the exam demands a lower level of intelligence.

I saw confused looks on my classmates’ faces in reaction to a Filipino citing “bar topnotcher” as a credential. Later, I would see the same confused look on an international law firm partner’s face, seconds before throwing away a Filipino resumé. Note that Barack Obama is cited as the first African-American president of the Harvard Law Review—the United States’ single most prestigious legal credential—not as a bar topnotcher and not even as a Harvard Law magna cum laude graduate.

I can attest that the Philippine bar exam is the most difficult in the world—for all the wrong reasons. The New York exam has a well-defined scope and structured questions. When I took the Philippine exam, I was asked a question on which I wrote a thesis of over 100 pages.

The long list of required Philippine bar subjects has not changed in decades. The exam demands basic knowledge of intercountry adoption, war crimes, value-added taxation, and liability in car accidents, a demand that would never arise in actual practice.

Our law school curricula naturally follow the too-long list of prescribed bar subjects. This has destroyed legal education because there is simply no room for anything else, especially with the entire fourth year of law school intended for bar review subjects that are a compressed repeat of the first three. In contrast, law is a three-year program in the United States where one takes the most basic subjects in freshman year. The succeeding years are purely for electives—they presume one does not need exposure to every single field—and some have proposed two-year programs given this.

Philippine law schools must devote three units to the Negotiable Instruments Law. This is a cruel joke because the law was intended for a time when commercial papers were delivered by galleon or stagecoach and that class typically ends with a summary of the brief rules for bank checks, the instrument we far more commonly use today. In contrast to this monumental waste of time, modern, complex laws such as the Intellectual Property and the Securities Regulation Codes are not required reading.

The line of University of the Philippines professors once was that students were there to study law in the grand manner, not review for the bar. Even UP bowed to pressure from alumni fixated on the bar. Equally fixated college seniors were attracted to schools with higher bar passing rates and topnotcher counts. UP did well in both in recent years, but at the staggering cost of eliminating nearly all electives in favor of mandatory bar review classes and stricter grade requirements to remove perceived weaker students before they could affect the all-important bar statistics.

All this has reduced law school to soulless memory games. Our unconscious image of the abogado de campanilla is still an idiot savant who can recite pages of rules verbatim, down to the commas. I remember a progressive Dean Raul Pangalangan holding up a CD of compiled court decisions, then worth about P30,000, to freshmen and reiterating the trivial market value of the memory games.

The obsession with memorization cripples education. Teaching constitutional law, the most philosophical of all law subjects, it is frustrating to see students simply skip to the bottom of decisions to see who won, then memorize a summary of the resulting doctrine, missing the essence of the very human conflicts involved.

I spent years flying around as a New York securities lawyer and lesson No. 1 was that securities law is fundamentally different from other fields because it involves public markets; thus, you cannot just copy financial contracts from other fields. Given our rote education, Filipino lawyers tend to approach it as a list of registration procedures and exemptions from registration, with less emphasis in contracts on the central point that you can be jailed for allegedly offering securities to retirees with misleading marketing material.

At my Harvard graduation, Dean Elena Kagan (later solicitor general and now justice of the US Supreme Court) did not exhort a 100-percent passing rate, pick a “bar bet,” or even read out academic honors. Instead, she read out the number of hours my American classmates spent offering free legal aid and recognized the student who organized all the gatherings and served as the glue that kept the large class together. If this is good enough for Harvard Law School and one of the most highly regarded American educators and jurists, it should be good enough for a Philippine law school. Frustrated young professors eagerly await the day when we do not need a straitjacket of a standardized exam to double-check our students’ quality, and law can be taught in its full intellectual beauty and modernity.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.

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