Abolish the Bar Exam
The bar exam should be abolished. I use the word “abolish” intentionally for its relationship to systems of oppression, particularly slavery. The bar exam is one such system of oppression, as it was designed to keep “undesirable” (read: non-White, non-male) lawyers out of the profession.
Most state bar associations require applicants to receive a passing score on their respective state bar examinations. These state bar exams are overseen by the National Council of Bar Examiners (NCBE), which is tasked with “develop[ing] and produc[ing] the licensing tests used by most US jurisdictions for admission to the bar.” Keeping the bar in place runs counter to the NBCE’s professed vision of “[a] competent, ethical, and diverse legal profession,” given the original intent of the exam as well as its negative effects on underrepresented communities within the legal profession.
The bar exam must be abolished in order for the legal profession to better achieve full and equal participation in the justice system, and a competent, ethical, and diverse legal profession. I first recount the history of the bar exam, which was created in response to ethnic minorities seeking entry to the legal profession. I will then explain flaws built into the bar exam before closing with a discussion of alternatives, which law professors and practitioners agree would better serve state bar associations’ commitments to defending liberty and developing a diverse legal profession.
History of the Bar Exam
Numerous authors have described the development of a bar exam as an intentional scheme designed to regulate the profession. Specifically, this scheme was intended to exclude women, people of color, religious minorities, and immigrants. Its timeline is worth recounting here.
Delaware, in 1763, was the first jurisdiction to administer a bar exam. This first exam was not written; there was no written bar exam until Massachusetts administered one in 1855. Prior to any written form of examination, lawyers became lawyers through apprenticeships, clerkships, and oral examinations. By 1860, all but two states had established bar examinations. If they were administered at all, they were conducted orally.
During the 1870s, states developed diploma privilege, which allowed attorneys to be admitted to the bar without sitting for an examination. From then until the 1920s, legal curriculum at the university level expanded from one to three years. In the 1920s, the American Bar Association (ABA) rejected diploma privilege in favor of written bar examinations. The ABA could similarly reject bar examinations in favor of more practical solutions.
Wisconsin, the only state that still honors diploma privilege, is where NCBE President and CEO Judith A. Gundersen attended law school. Although she never sat for a bar examination, she was admitted to practice in her jurisdiction and is responsible for overseeing the development, production, and administration of the bar exam across the United States.
At least one national bar association has recognized the inherent unfairness of requiring bar passage to gain admission. In 1970, the National Bar Association (NBA) voted unanimously to pass a resolution that called for the abolition of state bar examinations. Their reasoning was diverse, and included the bar’s failure to test aptitude, inability to test achievement, recognition that bar examiners testing students’ regurgitation over two to three days of testing does not compare to law professors’ assessments of the same candidates over three years. But the primary reason Edward F. Bell, then president of the NBA, gave for the unanimous vote was “the extraordinarily high mortality rate among Black applicants across the nation and the honest belief that discrimination was playing a major role in producing that high mortality rate.”
It is worth noting that the NBA was founded expressly because the ABA would not admit Black attorneys to their ranks. Although the ABA accepted its first Black attorney in 1911, for much of its history, it refused to admit Black attorneys. For this reason, in 1925, twelve Black attorneys who had been denied admission to the ABA formed the Negro Bar Association, which later became the National Bar Association. The NBA’s clear mission, therefore, was to create a competent, ethical, and diverse legal profession, and they correspondingly took specific steps to make the profession diverse. The ABA can and should do the same by abolishing the NCBE’s bar exam.
Problems with the Bar
The format of the bar has long been the subject of much criticism. The bar is essentially a twenty-five- to thirty-subject test of materials test-takers have learned during first-year doctrinal courses and perhaps during in the remaining two years of their time in law school. Most state bar exams include (1) the MBE, a six-hour 200-question multiple choice exam, which covers six common 1L courses (Constitutional Law, Contracts, Criminal Law, Civil Procedure, Real Property, and Torts) as well as two additional doctrinal courses (Criminal Procedure and Evidence), (2) the Multistate Essay Examination (MEE), made up of thirty-minute essay questions (covering the afore-listed courses as well as Business Associations, Conflict of Laws, Family Law, Trusts and Estates, and two subsections of the Uniform Commercial Code), (3) the Multistate Performance Test (MPT), which is comprised of ninety-minute tasks to which the test-taker applies “fundamental lawyering skills in a realistic situation,” and (4) the Multistate Professional Responsibility Examination (MPRE), which is a two-hour, sixty-question multiple choice exam covering standards of lawyer conduct.
The NBCE has developed all of these separate tested components—and profits off of them, with separate registration fees for each. Three of the four components require test-takers to evidence somewhat deep knowledge of a number of practice areas, which is irrelevant for the majority of attorneys, who specialize in one, or at most two, subjects. Indeed, one of the measures of competence tested on the MPRE is for an attorney to recognize when a client would benefit from another attorney who specializes in the area needed. The NCBE is developing tests for testing’s sake rather than for efficacy in cultivating a competent, ethical, and diverse legal profession. It would do well to take a page from its own ethics exam and encourage subject matter expertise over surface level understanding of a breadth of subjects.
How states administer the various portions of the bar is left to each state. With time constraints and requirements, test-takers generally have 1.8 minutes to answer each question on the exam. The bar exam demands split-second thinking without consulting any authorities for every portion of the exam. This kind of lawyering in the real world would be met with sanctions, and could be malpractice.
Not only does the test itself encourage bad lawyering, but preparation for the bar exacerbates privilege gaps between students. Most students study for the bar like it is a full-time job, spending eight to ten hours per day, six days per week studying. This year, due to COVID-related testing delays, California bar-takers are studying for the exam while working at their full-time post-graduation jobs. In order to study full-time, many students take out private loans. These loans must cover not only food and housing, but also the many fees the NCBE levies on test-takers. Before paying for a bar prep course, students easily pay over $1,600. Bar prep courses begin at around $2,000 on top of that. All of this is added to the $145,000 of debt the average law student accumulates during three years of law school. The bar exam, therefore, requires test-takers to take on higher amounts of debt and unethical professional practices.
Many outside the legal profession believe abolishing the bar exam would render vulnerable future clients to predatory attorneys. This is unlikely. There is no indication there were more shady lawyers preying upon innocent citizens prior to standardized bar exams, even though colonial-era lawyers did not have to receive law school training prior to practice. Moreover, there is no indication the number of shady lawyers has decreased due to standardized bar exams.
One recent article attempted to undermine this assertion with data showing higher rates of lawyer incompetence and sanctions for those who either take the bar multiple times or receive lower (but passing) scores on their bar exam. The author also points to data from a Tennessee study, which showed that “lawyers who failed the bar exam were more than twice as likely to be disciplined for client neglect and/or incompetence than lawyers who passed on their first attempt.”
This argument fails for a number of reasons. Incompetence and client neglect, both reasons the author asserts for maintaining the bar, are not measured by the exam. The bar exam only tests the taker’s capacity for memorizing the law, not the taker’s capacity for practicing the law. Further, a person who passes only after multiple attempts or with a low score, still passes. Having a bar in place has not deterred attorneys from client neglect or incompetence.
Alternatives to the Bar Exam
Admission to the bar could be redesigned to leave out a bar exam entirely. This is not a terribly radical line of thinking, given that this was how the legal profession began in the United States. A redesign begins with a question of what should be required for admission to a bar. In 2002, “a blue-ribbon commission of lawyers, judges, and law professors conducted an in-depth study and concluded that competent lawyers must also be able to do legal research, conduct factual investigations, problem solve, communicate effectively, counsel clients, negotiate, organize and manage legal work, recognize and resolve ethical dilemmas, and, in some instances, litigate and effectively use alternative dispute resolution procedures.” The majority of these skills are not tested by the bar as it currently exists. The bar also does not test commitment to social justice, cultural competency, a sense of fairness or equity, or any number of traits that range from useful to integral to success in the law, a service industry.
This in-depth study resulted in a Statement on the Bar Exam (the Statement) from the Society of American Law Teachers (SALT), the largest membership organization of law professors in the nation. Law teachers are face-to-face with students daily and perhaps have more opportunities to recognize ineffective testing methods as well as the harrowing effects of bar preparation on students. In the Statement, SALT identified six reasons the bar exam is ineffective, including an overemphasis on memorization of doctrine and the requirement that test-takers be generalists for the test.
SALT identified four alternatives to the bar. I include three, and add a fourth.
Diploma Privilege, which would grant licensure to all graduates of a state’s ABA-accredited law schools.
Practical Skills Teaching Term, which would require a ten-week teaching term with intermittent testing during which applicants receive training from a supervising attorney, as well as assessments in interviewing, advocacy, and legal writing and drafting. (Andrea A. Curcio suggested this model, which comes from Canada.)
Public Service Alternative to the Bar Exam (PSABE), where students may choose between sitting for the bar exam or working for 350 hours over ten weeks within the court system while completing a variety of assignments. (Dean Emerita of CUNY School of Law developed this scheme.)
Apprenticeship, where applicants work 470 hours over fourteen weeks under a supervising attorney. (The number of hours suggested is a recommendation based on half of the total number of hours California requires to become an attorney through apprenticeship without law school, though it could vary state-by-state.) As with apprenticeships before bar examinations became standardized, applicants would be able to begin working for pay while learning real skills needed for their work.
Any of these bar exam replacements would better serve the twin goals of having standards while also enabling more diversity within the legal profession. Currently, state bars have established standards and practices that disadvantage applicants with fewer financial resources while also upholding barriers to access originally put into place to keep the profession as White, Protestant, and male as possible. Without removing these barriers to entry, the legal profession will continue to be extremely White and male, rendering Alexis de Tocqueville’s 1830 comment, “American aristocracy . . . occupies the judicial bench and bar,” truer than ever in 2020.
If states abolish their bar exam, however, they can cast off a racist history that intentionally leaves out the diverse legal professionals they claim to want to draw in. Abolishing the bar exam makes it truly possible for state bar associations to equally serve their members, the profession, and the public by defending liberty and delivering justice as the national representative of the legal profession. Indeed, it is the surest way to make sure that the legal profession becomes actually representative of the nation.
Jessica Williams: Senior Diversity Editor for the California Law Review and member of Berkeley Law Class of 2021.