Bar Exams, Law School Deans, Law Schools

First Monday Musings By Dean Vik Amar: How The Bar Exam Might Be Improved

In light of how high bar-exam stakes are today, we need to ask some basic questions about this crucial test.

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Dean Vikram David Amar

Dean Vikram David Amar

As a law school dean, I spent a lot of time this past week thinking about the tens of thousands of newly minted JDs who were taking their bar exams throughout the country. Readers of this website will likely know that these are particularly anxious times in which to take the bar, given the significant drop in passage rates in recent exam administrations.

There are many proffered explanations for the sharp decline in pass rates, including a belief by some that as a higher percentage of law professors have little or no practice experience, law schools may not be doing as good a job of imparting the knowledge that the bar exam tests. (As an aside I should say this particular explanation wouldn’t seem to account for the large single-year drops we’ve seen in the past two years, insofar as it reflects a gradual trend rather than a sudden change, but perhaps a tipping point has been reached.)

There is no question that all law schools – even those with the very best bar-pass track records – need to actively take reasonable steps to facilitate bar passage by their graduates in this modern climate of lower pass rates. And in a subsequent essay I hope to describe some of the things we are talking about at the University of Illinois, where we have traditionally had very high pass rate in our home state.

But in light of how high bar-exam stakes are today – given the high debt loads with which some law students in the nation graduate (often because of debt incurred in the undergraduate years) and the requirement of bar passage for many legal jobs — we need to ask some basic questions not just about bar passage and law school preparation, but about whether the bar exam as it currently exists is a good or necessary way to regulate entry into the profession. (At least one state, Wisconsin, does not require passage of a bar exam for those people who have graduated from an ABA-approved law school in the state.) Even if some kind of licensing exam is necessary or proper, is the bar exam that we give nationally each year the right kind of exam? This is a big question, but I want to offer two provisional thoughts here.

The first is that bar exams should be more standardized throughout the country. Having each state craft a unique exam which persons wishing to practice in that state must pass limits geographic mobility and constricts job opportunities at a time when the profession should be looking for ways to make it easier for people to use their legal training for the benefit of clients in need of legal services.

For this reason, I view as a generally favorable development that about half the states have in the last five years adopted the so-called Uniform Bar Exam (UBE), which is “uniformly administered, graded, and scored by user jurisdictions and results in a portable score that can be transferred to other UBE jurisdictions.” There are some nuances with the UBE that may require some states to supplement it with a small state-specific component (and I note that Illinois has not yet adopted the UBE), but a move in the direction of uniformity and portability is a good one.

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The historical rationale for each state having a distinct bar exam has been that in law (unlike, say, in the medical field, where the fact that patients in all states share a common human anatomy might explain why there has long been a national medical board exam), each state has a different set of statutes and common law principles, and people licensed to practice in a state need be well-versed in that state’s legal specifics. But as my fellow law Dean Erwin Chemerinsky has observed, “the truth is that basic principles of law do not vary from state to state. And lawyers can learn the quirky specifics as they go. Forcing students to memorize detailed, state-specific rules, most of which they will never need to know and which they will promptly forget, does not ensure competence.”

My second suggestion for reform has not been the subject of as much discussion as the benefits of uniformity. It is that we should rethink the very content and format of bar exams, regardless of how distinct each state’s exam is. If bar exams are intended to produce competent lawyers, shouldn’t the exams simulate the kinds of tasks competent lawyers are asked to perform? I think Erwin is right that having bar takers “memorize detailed, state-specific rules” makes little sense, but perhaps we shouldn’t focus on their ability to memorize even nationally prevalent rules. That is, maybe we should move away from focusing on memorization altogether.

To this end, I think states that include a “performance exam” component in the bar exam – in which students are given some fictitious but plausible set of legal materials (statutes, regulations, judicial opinions, etc.) and then asked to make arguments within the confines of this universe of governing law – are on the right track. Test-takers responding to these performance exam hypotheticals undoubtedly draw on the broad and deep legal knowledge and instincts gained during law school – people, even very smart people, who never went to or paid attention in law school could not generally do well on these performance exams – but takers needn’t obsess over memorizing technical specifics, since those specifics will be given to them in the materials. Instead, students are tested on their ability to read, analyze, harmonize and choose between various legal materials and authorities, and to structure and present in clear prose cogent arguments in favor of or against various ways of understanding the state of the law in the legal universe in which they have been dropped. It seems to me these are many of the skills we want good lawyers to have – and ones I would look for in hiring a lawyer – such that we should be testing on them directly.

Finally, if we want the bar exam to look more like the real-world practice of law, perhaps we should consider making it somewhat less time-pressured. Bar exam takers are generally given only a couple of minutes per multiple-choice question and typically only an hour per essay. (Performance exam essays, smartly, offer more time.) I think there is a real danger that we are overemphasizing speed over rigor.

It is true, of course, that lawyers must think and act on their feet quite often. And time-pressured exams might be assumed to do a fair job of measuring quick thinking. Lawyers who make oral arguments in appellate tribunals must process information and ideas and respond fast. So must trial attorneys deciding whether – and in what way – to object to (or defend) the introduction of testimony that is, at the same moment, coming out of the witness’s mouth, or, in the case of a document, being handed to them for the first time.

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But most lawyers focus not on oral advocacy, but rather on written work – correspondence, motions, memos, briefs, contracts, releases, settlements, corporate filings and other documents. That should lead us to ask whether the skills required in drafting these documents correlate to the skills measured by time-pressured bar exams (and perhaps other time-pressured law exams, like the LSAT and law school 3-hour finals). I don’t know what the data on this would show, but it is something we need to look at much more carefully than we have.

Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at [email protected].

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