Erosion of Support for Bar Exam System

I was surprised to read an article in the New York Times indicating that the system of using bar exams to license lawyers “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

The article quotes Kristin Booth Glen, former dean of the City University of New York School of Law, as saying that bar exam “does nothing to measure lawyering skills.” Although bar exams have incorporated some elements of legal practice, overall these exams generally focus mostly on highly-stylized discussion of legal doctrine, relying heavily on memorization.

The article notes that “[m]any law school deans, bristling from criticism that they are replenishing their ranks with less academically qualified students as the number of law school applicants has fallen sharply, began to openly question the mechanics of the bar exam.”

It describes efforts in several states to develop alternative licensing systems.

I haven’t carefully studied the bar exam system but from my experience as a law student, bar exam taker, practitioner, and law professor, it seems very problematic for many reasons.

A fundamental problem is that isn’t a valid measure of the most important skills needed to be a good lawyer. I took the bar in California where the passage rate was about 50% and I teach in Missouri where the passage rate is over 90%. This difference can’t be explained solely by differences in training or competence.

Another problem is that the bar exam system exerts a kind of gravitational pull on legal curricula to prepare students for the bar and mimic the underlying educational assumptions in our courses. Ironically, if law schools didn’t have to worry about bar passage rates (in part because of the infernal US News rankings), there would be more freedom to change the curriculum to better train lawyers.

It has always boggled my mind that we let lawyers loose on the public after graduating from law school and passing the bar. We wouldn’t let doctors practice without extensive supervised clinical experience. It seems crazy that our system lets lawyers practice without requiring any clinical experience.

I am intrigued by legal systems in which lawyers are “called to the bar” after a “pupillage” period in which law graduates work in law offices for a time before they are licensed. Not having studied these systems, I imagine that they have their own problems but generally do a better job of training and certifying competence. However appealing this may be, any new system in the US would need to be tailored to fit our conditions and culture. But considering the major flaws in our system, there’s gotta be a better way we could do this.

Change in legal practice and especially legal education seems to happen at a glacial pace. So I don’t expect the bar exam system to disappear any time soon. Even if it did recede, there would be thorny practical and economic problems in replacing it. But it would be good if there are serious efforts to start making fundamental changes.

2 thoughts on “Erosion of Support for Bar Exam System”

  1. One type of test and licensing system is not a good indicator of success as an attorney in a world where people have different learning styles. What works for some people does not work for everyone. Similar to doctors who must have clinical experience, law students need more experience beyond the classroom prior to becoming an attorney. I do not know the answer to this dilemma, but giving students the option to do externships or internships during law school is insufficient. Similarly, I think the LSAT is not a good indicator of who should get into law school. Some people with great undergrad GPAs are not good standardized test takers.

  2. As a law student the thing that gives me the most anxiety is not taking the bar necessarily, but being prepared to practice law upon receiving that license. The bar exam does not prepare you to practice law; it tests your knowledge of what the law is and these two concepts are not mutually exclusive. The reality is, very few law students who graduate are truly prepared for the responsibility of practicing law. I like an article that I read:

    http://www.nytimes.com/2014/08/03/education/edlife/how-to-learn-the-law-without-law-school.html?_r=0

    that talks about the idea (and in some states the reality) of allowing students to learn the law through an apprenticeship program before taking the bar exam and becoming a licensed lawyer. In a few states, students can study for the bar without ever (1) paying tuition or (1) going inside of a law school. I think the apprenticeship program is a wonderful idea as it would truly prepare aspiring attorneys, not only for passing the state licensing bar exam, but for the actual practice of law upon receiving that license. And hey, isn’t this how attorneys (and other professionals) were trained before the licensing process was regulated?

    Another consideration is how law firms hire students out of law school. Firms are less willing to take valuable time to train new lawyers, and are instead opting to hire already trained lawyers. Of course students in law school have the ability to intern, extern, and do pro bono work while in law school, but these opportunities may not be sufficient and actually can be difficult to obtain.

    I do not think the bar exam is necessarily the problem. We need some type of licensing program to ensure attorneys meet a threshold level of knowledge of the law to be licensed, but I do think there needs to be some “extra” practical knowledge requirement as well to ensure newly licensed attorneys are actually ready to practice.

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