Bar Exams, Law Schools

Law Deans Blame The Bar Exam, Instead Of Themselves

Law deans' attacks on the bar exam are not serious. They're desperate.

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The Multistate Bar Exam is the second most famous licensing exam in the world. Only the “road test” has better name recognition than the bar.

Lots of professions have some kind of licensing process, and many of them require would-be professionals to take some sort of test. The bar might be famous, but it’s not unique.

Yesterday, DealBook ran a story about the bar exam “coming under fire” from law school deans who believe that the bar erects an unnecessary barrier to entry to the legal profession. The attack represents a new height of hypocrisy from legal academia. THREE YEARS OF LAW SCHOOL creates an unnecessary barrier to entry. Taking on six-figures of debt creates an unnecessary barrier to entry. The bar exam is just the last hurdle at the end of a long and expensive race.

As far as licensure goes, the bar is somewhere in the middle compared to other professional requirements. People who took the July 2014 bar posted terrible bar passage rates, yet in most states, that rate was still over 80%. Compare that to Series 7 passage rates, where a third of test takers regularly fail. On the other end of the spectrum, state medical boards usually have passage rates of about 90%.

Of course, each industry places the barrier in a different place. A monkey could sit for the Series 7. FINRA doesn’t care. They use the test as the primary barrier. For doctors, first you have to get into medical school, then you have to stay in medical school, then you have to do your residency, then you have to have your visitation from the Holy Spirit who grants you the authority to play God, and then you take your boards. By the time the test rolls around, you are ready to be a doctor; the medical profession puts its barriers at the front end.

The legal profession has a combination of both. A monkey can sit for the LSAT and get into law school, but most likely only a higher order primate can actually hang in there through 1L year. Then the bar exam is legitimately difficult, even though the vast majority of people who can sit for it can pass it.

The biggest criticism against the bar is that it doesn’t test “real lawyering” skills. It’s a criticism I think everybody agrees with except for the people who actually make up the bar questions. The bar does not prepare you for being a practicing attorney. No argument here.

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The problem though is that neither do law schools. Here is the lie upon which all law dean bar exam critiques are based:

Eliminating or curtailing the current bar exam would give law schools more leeway to create programs and conduct testing that determines who becomes a lawyer. The schools say the exam’s outsize importance forces them to devote more resources, including bar-specific courses, to prepare graduates for the crucial test rather than focusing on legal principles or hands-on law practice.

Right, and if it weren’t for the outsized importance of traffic lights, I’d have more time to focus on my beer while driving home. Law schools don’t spend a lot of time preparing people to practice. They also don’t spend a lot of time preparing people to pass the bar. Look at our story about Whittier law school and its struggles to help students pass the exam. Notice that all of that “bar prep” is happening outside the normal academic calendar. The 3Ls really care about passing the bar, but 9-5 class time is still devoted to whatever Law and Spelunking course a legal academic wrote a book about.

Law deans who want to eliminate the bar want to move to a system where graduating from law school is all you need to become a licensed attorney. Note how that is NOT the same as “eliminating” a barrier, instead it’s a move that gathers all gatekeeping power towards the law school and no one else. This would be like Charon killing Cerberus and then jacking up the price on the ferry.

If you really wanted to eliminate barriers to entry, you’d make it so that anybody could sit for the bar. Law schools would then have to prove to the market of prospective lawyers that they offer something OF VALUE to students that they couldn’t get in a two month prep course. Does any law dean want to come out in favor of that? Anyone? Bueller? Any dean want to sign up for giving worth to students beyond mere gatekeeping? I thought not.

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On the other hand, if we really cared about preparing lawyers to practice, we’d move to an apprenticeship system. You take one year of classroom work to learn the basics, then hook up with a real lawyer who pays you a low wage (as opposed to paying your school a high tuition) who shows you the ropes for two years. Then you take some kind of minimal “I can haz sober” test, and you’ve got a license. That would work. But again, law school deans are not going to support that. Sure, they’ll talk a big game about apprenticeships, so long as law students still have to pay the schools for three years of education. The DealBook article highlights the program in New Hampshire that “allows second- and third-year students to participate in a kind of apprenticeship where they learn basics like taking depositions.” The DealBook article does not highlight the part where University of New Hampshire Law students still have to pay their school $37,100, in-state, for the privilege of having somebody other than the University of New Hampshire teach them how to be a lawyer.

Any serious attempt to reduce the barriers to entry into the legal profession will cost law schools money. Any serious attempt to reform licensing requirements so that they are more in line with practical skills training will cost law schools money.

Law deans’ attacks on the bar exam are not serious. They’re desperate.

Bar Exam, the Standard to Become a Lawyer, Comes Under Fire [DealBook / New York Times]

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