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.