Kill The Bar Exam

LawProfBlawg wants to know: what's the point of the bar exam?

Seventeen years ago, a friend of mine wrote a scathing discussion of the bar exam. He sent it to… his friendly neighborhood bar journal. Not surprisingly, the bar journal rejected the piece. He asked me to revise it and share it with you.

KILL BILL BAR

I remember taking the bar exam like it was yesterday. Opening up the essay portion to a fact pattern, I spouted off rules to apply from memory, perhaps getting some of them wrong. This was terribly uncomfortable: I didn’t have malpractice insurance. And the Bar was compelling me to engage in this terrible malpractice.

What’s the point of the bar exam? I spent a billion dollars to go to law school, then put another large sum toward a bar prep course, forgoing wages so I could dedicate myself to studying, stressing, losing sleep, and watching videos or live presentations from…. law professors, who were alive or dead. Didn’t I just leave that scene?

In a time when the ABA and others are screaming for reform in legal education, it is time to look within. What’s the goal of the bar exam?

Possible Goals of the Bar Exam

  1. Well, it is called a BAR. A bar is a hurdle, a barrier. Something that prevents entry. The purpose is maybe to limit the number of lawyers. I fell asleep when my antitrust professor was talking about raising prices by limiting numbers of providers. Something like that.

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If you look at the bar passage numbers, they don’t tell the story of being much of a bar. True, there are some states with passage rates below 75%, but there also a lot of unaccredited law schools out there. It’s not even clear why people fail the bar. It may not be out of difficulty, but rather life-changing events, anxiety, and other trauma unrelated to the difficulty of the exam.

  1. It’s the Money, Stupid. Similarly, the bar application fee does not appear to be a valid reason for the bar exam. After all, administering an exam is a costly process, forcing admissions personnel to take time out of their lives to: (1) escort test takers to the bathroom so the test takers don’t cheat and (2) walk up and down the examination room to increase the anxiety of already nervous test takers. Paying attorneys to read the examinations is also a costly proposition. Clearly, a better alternative would be to require “initial” members to pay a higher fee, and the fee would decrease after the first year.
  1. Just checking on whether your law school did a good job. Perhaps a more compelling argument is that the bar exam tests whether students are capable of thinking like lawyers, spotting issues and providing legal analysis of those issues based on the facts, the law, and the policies and implications of the combination. This would be a compelling argument were it not for the fact that most bar applicants just spent three years practicing these same skills. What law student has not been asked: “What is the issue?,” either in a class or on an exam? If students cannot spot issues and write essay exam answers by the time they take the bar exam, how on earth did they pass their classes?

One possible answer is grade inflation. Some schools have mandatory curves, making it impossible to flunk students. Even without such regulation, professors don’t want to be dream killers. Failing someone is unpleasant, even if a failing grade is well deserved.

Fodder in, fodder out: Let’s memorize law.

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A final possible reason to have a bar exam is to test the applicants’ knowledge of basic law. It seems arbitrary to add some topics and not others. You could argue of course, that certain classes have universal practicality: Evidence, for example. But this clearly is not true for Family Law, unless perhaps lawyers have higher divorce rates and need to be prepared. While there may be many useful concepts learned in a course in Family Law, it does seem arbitrary to place that subject on the bar exam while excluding others.

Thus far I have only addressed the essay exam. But what about the multiple choice portion of the exam? Clearly, one has to spot the relevant issues and know the relevant law in order to distinguish between answer “D” and answer “C.” But how often are issues so clearly articulated in reality? Moreover, how often in reality would a new attorney be required to give a “yes” or “no” or some other finite, discrete set of possibilities off the top of her head? In addition, given the pervasiveness of bar review courses that guide students as to the pitfalls of various examiners’ trickery, the multiple choice portion fails to test anything other than how well bar review course prepared the student.

I may have overlooked some other, nobler goal. Perhaps the bar exam is a character-building exercise to determine how students react under pressure. I can answer that quite simply: Whenever I was faced with time pressure on the muti-state portion of the exam, I chose “B.” I figured I would get 20% of the guesses correct, assuming a random distribution of answers.

Where To From Here?

If there is no reasonable purpose served, or at least for which the benefits do not outweigh the enormous costs, then maybe we need to axe the exam altogether.

Again, eliminating the exam is not necessarily a bad idea: Maybe certain schools are of such good quality that most students from those schools can issue-spot and write effective essay exam answers. If true, this would, by implication, mean that the people who do not pass are not from these schools. But this does not support the need for a bar exam: It supports the argument that there should be no bar exam (at least for students hailing from these good law schools). In other words, because some law students are quality “outputs,” they should be exempted from taking the Bar, much like Wisconsin students are quality “outputs” and are thus exempted from taking the Wisconsin bar exam.

Another alternative is a one-day “performance” based test. Many states have implemented performance tests as an addendum to the essay and the multistate exam. But the performance test is given after two days of “essay” writing and multiple choice. Since these two elements appear to be pointless, a more efficient exam could be administered. It would also serve to perhaps lower the costs to budding attorneys, both in terms of lost income and fees paid to bar prep courses.

It is no answer to say that we have always done it this way (we haven’t) or that since we had to go through it, why shouldn’t the new applicants? Applicants shouldn’t be forced to endure the same pointless process as those endured by graduate students, pledges to fraternities, and new members of athletic teams.

Instead, the bar examination should fulfill some important purpose. Namely, it should determine which applicants are competent in the practice of law, and which are not. Given the unrealistic nature of the current examination, it cannot possibly fulfill that purpose. A single-day, performance-based exam without the useless essay and multiple-choice portions of the bar exam would be a better, more efficient screening device. This would allow bar prep employees to find more useful work other than the taking of bar examinations and reduce the excessive levels of anxiety and monetary costs to applicants forced to watch videotaped lectures from professors both living and dead.


LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. Email him at lawprofblawg@gmail.com.