With Little Evidence to Support the Current Bar Exam's Claimed Objective, It's Time to Seriously Consider the Various Alternatives
INTRODUCTION
The dreaded bar exam; the final hurdle in one’s journey to becoming a licensed attorney in the United States, and the source of enormous stress and mental anguish for so many aspiring lawyers every year. Take, for example, Paula Coughlin, who contracted stress-induced hives all over her body due to the stress of studying for the bar exam.[1]Coughlin developed a method to cope with her problem; by holding a hairbrush in one hand and her notes in the other, she would alternate between using the brush to scratch the hives and answering a practice question.[2] Assistant Dean of Students at Rutgers University Law School, Andy Rothman, had a former student who developed stress-induced hemorrhoids while preparing to take the bar.[3] Rothman recalled that the student had to roll to one side to cope while taking the exam.[4] Both Coughlin’s and Rothman’s students passed their exams; however, some bar takers are not as fortunate. Sam Goldstein is one such example. Goldstein, a graduate of Arizona Summit Law School, took the bar for his eighth time in July of 2018 and missed a passing score by only thirteen points.[5] Although at that point he had spent five years trying to pass, Goldstein was determined not to give up.[6]
Unfortunately, these experiences are not isolated. Rather, the bar exam is a cause of widespread physical and emotional stress for new law school graduates. Why must aspiring attorneys in the United States go through this hardship after enduring three strenuous years of law school? Is the bar exam a necessary evil to ensure “minimum competence” in American lawyers and to protect the legal profession?
Minimum competence and protecting the profession are the objectives that supporters of the bar exam say it accomplishes.[7] However, there is little to no credible evidence that support these claims. In fact, overwhelming evidence shows that the bar exam fails to meet these objectives. First, supporters of the bar exam have failed to provide a reasonable definition of minimum competence.[8] Thus claiming that the bar exam attains this is a baseless assertion. Second, the bar exam only tests a narrow range of skills and cannot purport to ensure minimum competence when it overlooks so many important aspects of competent lawyering.[9] Third, the bar exam is unnecessarily broad and forces hopeful attorneys to spend innumerable hours studying subjects that they will never use in practice.[10] Fourth, it fails to take into account and incorporate current competency issues afflicting the legal profession, which only bolsters these underlying issues.[11] Lastly, the bar exam perpetuates prejudice against minorities attempting to enter the legal profession and consequently works against establishing equal opportunity and diversity in the profession.[12]
Part I of this essay details the history and development of the bar exam in the United States. Part II outlines problems with the current bar exam and how it fails to achieve its purported purpose. Part III suggests alternatives to the bar exam as it is currently administered that would better achieve the bar exam’s intended objectives.
I. EVOLUTION OF THE BAR EXAM
Prior to the 1800s, forthcoming lawyers entered the profession through apprenticeships, clerkships, and oral examinations. The first ever bar exam was an oral examination administered in Delaware in 1763.[13] It wasn’t until 1855 in Massachusetts that the first written bar exam was administered. However, in the 1870s, states developed the concept of diploma privilege, which allowed attorneys to practice after graduating from law school with no requirement to take the bar exam. Diploma privilege persisted until the 1920s, after which the American Bar Association (ABA) began requiring written bar examinations. Today, Wisconsin is the only remaining state to honor diploma privilege.
Each state administers its own version of the bar exam that are typically very similar. Most state bar exams generally include a Multistate Bar Examination (MBE), which is a 200 multiple-choice question test that covers six substantive legal areas commonly learned in the first year of law school.[14] The MBE score is combined with the test-taker’s score in a Multistate Essay Examination (MEE). Additionally, some states require a Multistate Performance Test (MPT), which is an examination meant to test “fundamental lawyering skills in a realistic situation.”[15] Each of the aforementioned tests that together make up the bar exam are developed by the National Council of Bar Examiners (NCBE), whose professed mission is to “promote[] fairness, integrity, and best practices in admission to the legal profession.”[16] For many reasons, however, the bar exam in its present state runs contrary to the NCBE’s stated objectives.
II. DEFICIENCIES IN THE CURRENT BAR EXAM
The NCBE claims to strive for “a competent, ethical and diverse legal profession.”[17] Proponents of the bar exam, in accordance with the NCBE’s vision, argue that it ensures minimum competency in the legal profession.[18]However, there is little to no evidence that supports this conclusion. Neither the NCBE nor any state that administers the bar exam have provided a sound definition of what minimum competency entails. Without first providing a reasonable definition of minimum competency, one cannot legitimately claim that the bar exam achieves this purpose.[19] This flawed reasoning at the very least calls for a revaluation of the bar exam’s purpose and a determination of whether it accomplishes that purpose.
One need not endeavour too far however to discover that the bar exam fails to produce minimally competent lawyers. The multiple sections that the bar exam is comprised of only test a narrow range of skills in slightly different ways. The exam is unrepresentative of the actual skills attorneys use in their practice. The legal profession does not usually involve the type of tasks one is required to understand to pass the MBE and MEE. Moreover, lawyers are not operating under the same time pressure. The exam essentially tests the test-taker’s ability to identify an issue and apply the appropriate law. Being a competent lawyer however demands so much more. Performing legal research, factual investigation, negotiation, counselling, and presenting oral arguments are just some examples of skills that are fundamental for competent practice but that are not adequately tested on the bar exam.
A justification for not incorporating a broader array of skills on the bar is that it would be impossible for a single exam to include them all. Rather, advocates claim that the bar exam includes the most important skills that ensure minimum competence and that it is the best method to screen against incompetence.[20] However, this justification does not hold water because there are several other methods, examined in Part III of this essay, that if put into practice, would do a better job at attaining the desired objective.
Apart from being under encompassing in terms of skills testing, the bar exam is overbroad in terms of subject matter testing.[21] The exam unnecessarily compels test-takers to study a wide range of general subjects while, in reality, most lawyers are specialists and only practice in a certain field of law. The MBE section of the bar exam usually incorporates constitutional law, contracts, criminal law, civil procedure, property law, torts, criminal procedure, and evidence.[22] Moreover, the MEE section covers the afore-mentioned subjects as well as business associations, conflict of laws, family law, trusts and estates, and two subsections of the Uniform Commercial Code.[23] Most of these subjects are taught in compulsory courses throughout law school. Therefore, individuals attempting to pass the bar exam are required to spend countless hours reviewing subjects that they have supposedly learned already and will likely never encounter again in their careers. Forcing aspiring attorneys through this process is unreasonable and a highly inefficient way to ensure minimum competency to say the least.
Furthermore, as a standardized test, the bar exam essentially examines a generic set of concepts and skills. Thus, it fails to screen for and incorporate what lawyers are actually struggling with in practice. For example, common reasons for malpractice claims include “preparation, filing, and transmittal of documents, failure to timely commence an action, [] investigation other than litigation . . . failure to communicate with clients and lack of due diligence in working on a client’s case”–none of which are tested or measured on the current bar exam.[24] A bar exam that purports to screen for minimum competence in attorneys should reasonably be expected to incorporate current issues of incompetence in the legal profession. Although these issues may change throughout the years, the law also changes, and the bar exam must account for these changes otherwise it cannot genuinely claim to achieve minimum competence.
The bar exam also has a history of prejudice against minorities.[25] Although the exam is no longer explicitly discriminatory, it continues to have a unfavourable impact on underprivileged communities.[26] Individuals that take the bar exam spend months preparing for it and upwards of $3,000 on prep courses and exam fees.[27] Some individuals can afford to take a few months off of work to prepare for the exam, which gives them an advantage over underprivileged and typically non-white applicants that cannot afford to do so. The disparate impact of the bar exam on black applicants is demonstrated by the results of California’s February 2020 exam.[28] Only 5% of black first-time bar exam-takers who graduated from California ABA-accredited law schools passed the exam compared to a 51.7% passage rate for first-time white test-takers.[29] Nationwide statistics are similarly disheartening. Only 66% of black law students passed the bar exam in 2020 on their first attempt while 88% of white first-time test-takers succeeded.[30] These somber statistics augment a recent study by AccessLex Institute that suggests the exam is a better test of resources than it is of competence.[31] While the bar exam is certainly not the only reason for the prominent racial disparity in the legal profession, it does perpetuate it, which directly contradicts the NCBE’s vision of a “diverse legal profession.”
III. ALTERNATIVES TO THE EXISTING BAR EXAM THAT WOULD BETTER ACHIEVE THE DESIRED OBJECTIVE
An obvious alternative to the bar exam is reinstituting diploma privilege. Wisconsin is the only state to retain the custom of diploma privilege, which admits a graduate of law school to practice with no bar exam requirement. Nevertheless, in Wisconsin, it is uncommon for new attorneys to face issues of malpractice or professional misconduct.[32] Wisconsin, which has utilized diploma privilege since the late 1800s, has certainly not suffered any issues of admitting more incompetent attorneys than other states.[33] This fact strongly conflicts with the presumption that the bar exam is needed to protect the public from incompetent lawyers.
Wisconsin restricts diploma privilege to graduates from one of the state’s two public law schools. This approach allows the state to maintain control over the education of future Wisconsin attorneys and to ensure competency through the law school program.[34] Other states could follow a similar approach and make reformations to their respective law school programs. A more universal diploma privilege approach could also be implemented by granting the privilege to graduates of any American law school as long as it is ABA accredited. This would force law schools to meet certain uniform standards, and achieving minimum competency could be integrated in law school education rather than a subsequent exam that requires students to fork over additional time, effort, and funds.
The Canadian model is another viable option to replace the bar exam that would better achieve minimum competency in forthcoming attorneys. Although attorney licensing requirements vary to some degree from province to province in Canada, most provinces require law school graduates to undergo a six to twelve month articling period.[35]The goal of articling is to assist prospective attorneys in transitioning from law school to actual practice.[36] Articling provides the articled clerk an opportunity to gain experience in different areas of practice, such as “professional responsibility, personal practice and office management, interviewing and advising, negotiation, and advocacy.”[37] The articled clerk is supervised by a licensed attorney, who provides constructive feedback and assists the articled clerk in attaining legal practice and client management skills.[38] The Canadian model, like the American system, is designed to ensure new lawyers meet a minimum competence standard.[39] With the opportunity to gain real legal experience under the supervision of a licensed attorney, the Canadian model can more realistically assure that new lawyers are meeting this standard.
A third possibility to replace the bar exam is the public service alternative. This method requires law school graduates to work in the court system for 350 hours over a ten-week period.[40] During this period, participants would take part in varying assignments where their competence would be evaluated by trained court personnel and law school clinical teachers. In addition, participants must commit to 200 hours of court-attached pro bono work that must be completed over the following two to three years. The public service alternative ensures that new lawyers acquire the broad array of skills that are found in actual in-court practice. Competency is assessed based on their performance on real assignments while under the supervision of lawyers, scholars, and judges. This alternative also implements public service, which according to the bar, is rudimental.[41]
CONCLUSION
The bar exam is an unnecessary incumbrance on aspiring attorneys in the United States. Under the guise of ensuring minimum competence in the legal profession, the bar exam has tormented new law school graduates throughout the country for far too long. No reasonable definition of minimum competence has been provided by supporters of the exam, which calls into question their claim that the exam ensures this standard in the profession. Moreover, the bar exam overlooks many skills that are necessary for competent lawyering while at the same time allocating a large portion of the exam to subject matter that is superfluous. The bar exam also fails to consider competency issues currently affecting the legal profession, which it ought to incorporate in order to better achieve its claimed objectives. Furthermore, the bar exam is an impediment to minorities attempting to enter the legal profession and effectively contributes to the lack of diversity in the profession. With several practical alternatives that would better achieve the bar exam’s claimed purpose of ensuring minimum competence in the legal profession, there is no reason why replacing the bar exam with one of these alternatives should not seriously be considered.
Ibraheem Khalifa (‘23) is a Juris Doctor candidate at Michigan State University College of Law. He is an Associate Editor on the Michigan State Law Review. Ibraheem graduated from the University of Windsor with a Bachelor of Science focusing on Biology and Chemistry and a Bachelor of Education. Ibraheem worked as a middle school science teacher in the Middle East for seven years prior to embarking on his law school journey. He is primarily interested in Corporate Law, Tax Law, and Criminal Law.
[1] See Your Worst Career Anxiety, Bar None, Forbes (July 25, 2007), https://www.forbes.com/2007/07/25/law-bar-exam-lead-careers cx_tw_0725barexam.html?sh=3afc7f2cddb6.
[2] See id.
[3] See id.
[4] See id.
[5] See Anne Ryman, This Law School Grad Has Failed the Bar Exam 8 Times and Won’t Give Up, The Republic (Jan. 24, 2019, 5:00 AM), https://www.azcentral.com/story/news/local/arizona-investigations/2019/01/24/law-school-graduate-has-failed-bar-exam-8-times-keeps-trying/2599037002/.
[6] See id.
[7] See Ben Bratman, Improving the Performance of the Performance Test: The Key to Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565 (2015);see Andrea A. Curcio, A Better Bar: Why and How the Existing Bar Exam Should Change, 81 Neb. L. Rev. 363, 370 (2002); see Stephanie Francis Ward, Bar Exam Does Little to Ensure Attorney Competence, Say Lawyers in Diploma Privilege State, Abajournal (Apr. 21, 2020, 9:08 AM), https://www.abajournal.com/web/article/bar-exam-does-little-to-ensure-attorney-competence-say-lawyers-in-diploma-privilege-state.
[8] See Donna Saadati-Soto et al., Does the Bar Exam Measure Competence? The Answer: We Have No Idea., Jurist (Apr. 21, 2020, 10:44:54 PM), https://www.jurist.org/commentary/2020/04/Saadati-Soto-Escontrias-Sarkar-bar-exam/; see also Curcio, supra note 7, at 371.
[9] See Curcio, supra note 7, at 371; see also Deborah Sanders, The Truth About What the Bar Exam Is and Is not, The Nat’l Jurist, (May 15, 2015, 8:37 AM), https://www.nationaljurist.com/national-jurist-magazine/truth-about-what-bar-exam-and-not.
[10] See Steven Chung, The Bar Exam: Mend it Don’t End it, Above the Law (June 24, 2015, 2:00 PM), https://abovethelaw.com/2015/06/the-bar-exam-mend-it-dont-end-it/.
[11] See Curcio, supra note 7, at 383–85.
[12] See Logan Cornett & Zachariah DeMeola, The Bar Exam Does More Harm than Good, Iaals (Aug. 2, 2021), https://iaals.du.edu/blog/bar-exam-does-more-harm-good (“The nature of the exam disadvantages individuals with fewer financial resources.”).
[13] See The Evolution of the Bar Exam, AdaptiBar (Feb. 3, 2015), https://blog.adaptibar.com/the-evolution-of-the-bar-exam/.
[14] See Curcio, supra note 7, at 372; see also Jessica Williams, Abolish the Bar Exam, Calif. (Oct. 2020), https://www.californialawreview.org/abolish-the-bar-exam/; See NCBE Exams, https://www.ncbex.org/exams/ (last visited Dec. 5, 2020).
[15] See id.
[16] See About NCBE, https://www.ncbex.org/about/ (last visited Mar. 23, 2022).
[17] See id.
[18] See Ward, supra note 7.
[19] See Curcio, supra note 7, at 371 (“Clearly, in order for a bar examination to be a legitimate test of minimum competence to practice law, it must be rooted in a reasonable definition of the very quality it professes to measure. However, not only have bar examiners noticeably failed to articulate a reasonable definition, but they have also failed to enunciate any definition at all.”).
[20] See id. at 374.
[21] See Chung, supra note 10.
[22] See Williams, supra note 14.
[23] See id.
[24] See Curcio, supra note 7, at 383–84.
[25] See Williams, supra note 14 (The bar exam . . . was designed to keep “undesirable” (non-white, non-male) lawyers out of the profession.); see also Oday Yousif Jr., Commentary: The Bar Exam is Stained with Inequality and Racism. It Needs to be Abolished, The San Diego Union-Tribune(Dec. 7, 2020, 5:45 PM), https://www.sandiegouniontribune.com/opinion/commentary/story/2020-12-07/abolishing-the-bar-exam-bias (“The American Bar Association itself was once a White male-only fraternity that voted to only admit ‘worthy members’ in an effort, as its membership chairman said, to keep ‘pure the Anglo-Saxon race.’”); see also Pilar Margarita Hernández Escontrías, The Pandemic is Proving the Bar Exam is Unjust and Unnecessary, Slate (July 23, 2020, 5:45 PM), https://slate.com/news-and-politics/2020/07/pandemic-bar-exam-inequality.html (“[T]he ABA [] passed a resolution that mandated that racial demographic data be required for entrance to the bar. The resolution read, in part: That, as it has never been contemplated that members of the colored race should become members of this association, the several local councils are directed that, if at any time any of them shall recommend a person of the colored race for membership, they shall accompany the recommendation with a statement of the fact that he is of such a race.”).
[26] See Cornett, supra note 12.
[27] See Williams, supra note 14; see also Cornett, supra note 12.
[28] See Escontrías, supra note 25.
[29] See id.
[30] See Deborah Jones Merrit et al., Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg L. (July 20, 2021, 4:00 AM), https://news.bloomberglaw.com/us-law-week/racial-disparities-in-bar-exam-results-causes-and-remedies.
[31] See id.; see also Analyzing First-Time Bar Exam Passage on the UBE in New York State, AccessLex Inst. (May 19, 2021), https://www.accesslex.org/NYBOLE.
[32] See Ward, supra note 7.
[33] See id.
[34] See Nicci Arete, The Bar Exam's Contribution to Systemic Inequalities in Access to Justice Around the World, 30 Wash. Int'l L.J. 324, 365 (2021).
[35] See Curcio, supra note 7, at 399.
[36] See About Articling, Nova Scotia Barristers’ Soc’y, https://nsbs.org/legal-profession/articled-clerks/about-articling/ (last visited Dec. 13, 2021).
[37] See id.
[38] See id.
[39] See Curcio, supra note 7, at 398.
[40] See id. at 410.
[41] See id.
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