Posted by Orin Kerr:
The Multistate Bar Exam As A Work of Legal Theory:
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115823766
Dan Solove offers a tongue-in-cheek theoretical analysis of the
Multistate Bar Exam [1]here. An excerpt:
The Bar exam draws heavily from Ronald Dworkin, who argues that
there are indeed answers to even the thorniest legal issues.
Departing from H.L.A. Hart�s open texture of law, where there are
pockets of uncertainty, for Dworkin, there is an answer to all
legal questions. And so, too, on the Bar. Every question has an
answer.
The Bar states that one is to choose the best answer, and thus it
does at least recognize that right-versus-wrong is too simplistic a
way to understand the law. But what does "best answer" mean? The
exam states that all questions should be answered "according to the
generally accepted view, except where otherwise noted." We�re back
to Hart again, with a kind of rule-of-recognition for the rules on
the Bar: The best answer is the generally accepted view. But among
whom? Lawyers? Judges? Academics? The public? The Bar doesn�t tell
us.
References
1. http://prawfsblawg.blogs.com/prawfsblawg/2005/05/the_bar_exam_as.html
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