Over the last several decades critics have taken aim at the bar exam, arguing that it’s outmoded, discriminatory, and simply ineffective as a barometer of legal competence.
Reforms have been slow to come—but the pandemic, and the temporary fixes for 2020 adopted as a result by state authorities, may lead to longer-term improvements to a lawyer licensing system that has historically resisted change.
As state after state has struggled with how to administer the bar exam in the wake of the pandemic—or ask if the test should be given at all—one thing has become clear: The traditional bar exam soon could become a thing of the past.
“I expect that 2020 will mark the beginning of a serious reexamination of the role that bar exams play in the licensing of lawyers,” said Andrew Perlman, dean of Suffolk Law School in Boston, in a written statement. “I believe that, in the coming years, jurisdictions are going to start considering a range of new options for admitting lawyers to the bar.”
Critics have argued that the exam process, and its emphasis on memorization rather than critical thinking, doesn’t properly ensure that newly licensed attorneys are competent, sufficiently trained in ethical standards, and can effectively serve clients as they start their careers.
They also have charged that the exam is biased toward applicants from upper-middle-class and wealthier backgrounds—an allegation that has resonated more deeply during the coronavirus crisis.
Mini-rebellions among test takers and law school deans occurred just after the 2007-08 Great Recession, and again in 2014, when both law school enrollment and bar exam scores were dropping. That November, about 80 deans demanded to see details regarding how test questions were selected and scored.
‘A Valid Measure’
Two prominent legal groups, the Institute for the Advancement of the American Legal System, and the National Conference of Bar Examiners, have been studying the future of the bar exam since long before the pandemic struck.
Over the last six months, states have struggled to determine how to handle their bar exams during the public health crisis. The NCBE, which formulates many of the states’ test questions, has been targeted by critics of the process over its opposition to proposed alternatives to the bar.
Those alternatives include diploma privilege, a system adopted by a handful of states so far that allows law school grads to become licensed without taking a bar exam.
The NCBE’s ongoing Testing Task Force so far has recognized the need for some reforms. According to its Phase 1 report issued last year, for example, the bar exam, which states break down into different component tests, should emphasize legal skills such as critical thinking and analysis more, and subject matter knowledge less. At the same time, multiple-choice questions, which are “not reflective of the way law is practiced,” should be reduced or eliminated.
The exam itself must remain, as it’s a time-tested way to ensure that new lawyers are prepared for what’s ahead, said Cindy Martin, chief judge of the Missouri Court of Appeals, Western District, and chair of the NCBE Testing Task Force.
Changes may well be needed, she said—hence, the need for the task force. But as a whole, the attorney licensing process in the U.S., with a state’s bar exam as a key component, is functioning as it should, she said.
“Yes, the process is working. I’m 1,000% convinced of that,” said Martin. “The bar exam is a valid measure and a highly reliable measure” of competence.
Most states until this year have provided their bar exams twice per year, in February and July. The bar exam process functioned per usual for the February test.
Then it all exploded, as confirmed coronavirus cases spread throughout the U.S. About half of the states held their previously scheduled, in-person July tests, despite panic and pointed criticism from test takers over fears of being exposed to the disease. Some states delayed their in-person exams until later in the summer or the fall, under the belief that coronavirus might disappear, or at least lessen, by then.
Many others, including the largest states such as New York, California, and Illinois, opted instead for an online exam, being held Monday and Tuesday. Yet several previous attempts at online, remote-proctored exams encountered technical issues that led test takers to believe their tests this week could be similarly compromised.
Other states opted for a wide range of alternatives, including diploma privilege and provisional licensing. That program, which has been adopted by about half the states, typically allows law school grads to become temporarily licensed while they work with supervising attorneys. Under provisional licensing programs, law grads must pass a bar exam for their license to become permanent.
‘What a Lawyer Actually Does’
In other scenarios, a couple states tried open book, “take-home” exams instead of the remote-proctored tests that groups of test takers and law school deans have deemed preferable to remote human proctors or artificial intelligence software monitoring test takers through computer webcams.
Open book tests don’t rely as much on short-term memory, said Mary Lu Bilek, dean of the CUNY School of Law in New York City. Instead, they more closely reflect how attorneys think, and “what a lawyer actually does” when facing new clients and cases.
The bar should have two overarching goals, said Bilek: protect future clients, and make sure to avoid keeping qualified would-be lawyers out of the profession. This is especially vital now, she said, given that the combined health and economic crises spurred by Covid-19 have increased the legal needs for many people, particularly in communities of color.
“We need new crops of lawyers to help us repair the profession,” Bilek said. “These new lawyers have to know how to deal with clients.”
There’s been little discussion about how states may administer their bar exams next February. For many, the thinking is: Let’s just survive 2020 first, experts say.
But what about after the coronavirus has largely abated, whether in 2021 or later? How will the bar exam look then?
Experts suggest that hybrid solutions are most likely, giving students multiple possible pathways to licensure, including remote proctored online tests, open book exams, and provisional licensing programs.
The long-term future of diploma privilege is less clear, they say, despite the fact that it’s generally considered to have worked well in Wisconsin, the one state that’s had it on the books for more than a century.
In the IAALS study, which should be released next month, researchers have collected data from 50 focus groups in 18 locations across the country, said Deborah Jones Merritt, a professor with The Ohio State University Moritz College of Law, in a written statement.
The groups were composed of new lawyers and their supervisors, and aimed to identify the knowledge and skills new lawyers need “to serve clients competently,” said Merritt, who is partnering with IAALS on the study. “Our findings suggest that we should make some significant changes in the licensing process.”
According to IAALS Director of Research Logan Cornett, the study has settled on 12 “building blocks” that contribute to the definition of “minimum competence.”
Three of these building blocks include the ability to interact with clients effectively; the ability to research both legal rules and nonlegal matters; and an understanding of “threshold concepts” in many different practice areas, said Cornett.
“I think the exam fails clients more than it fails the legal industry,” said Merritt. “A remarkable fact about the bar exam is that it has never been validated. That is, we have no way of knowing whether the knowledge and skills tested on the exam match the knowledge and skills that new lawyers need to serve clients competently.”
By Sam Skolnik for Bloomberg Law
To contact the reporter on this story: Sam Skolnik in Washington at email@example.com