Across The Country, Applicants Spend Last Weekend Studying For Bar Exam

We're in the endgame now.

On Monday, examinees in 19 states will attempt to take an online bar exam (though Oregon’s exam is for the small subset of applicants who don’t qualify for its diploma privilege program). We’ve had data breaches, decrypting rumors, a complete tech support breakdown, and serious racial discrimination concerns over the facial recognition algorithm’s performance. Make no mistake, even though the decryption fear is seemingly fixed by a massively improved password design since the summer, most of these issues aren’t resolved. Just this morning we received complaints from two jurisdictions over waiting on the phone for hours to fix a problem.

But through it all, when there was doubt, bar examiners have remained determined to do it their way.

And so we come to next week.

Is there a contingency plan if this doesn’t work? Hard to say. Judith Gunderson of the NCBE infamously responded to this concern with “I would be very surprised if that happened, given all the good and thoughtful professionals who are working on this. Why don’t you interview me Oct. 6?” When confronted with serious criticism, bar examiners are responding with childish taunts. Florida, which will not be going next week, has announced that they’ll move to an email exam like Indiana did in the “unlikely event” that something goes wrong.

The whole bar exam plan reminds of Donald Trump’s insistence that people don’t need to wear masks. It’s a strategy that worked for him perfectly for months. Right up until it didn’t.

It simply didn’t have to be this way. There was an opportunity here to engage in a critical reexamination of how the profession is regulated. An opportunity to end the reliance on a one-time generalist exam for an increasingly specialized profession that sees the most risk to the public coming from attorneys later in their careers. We could rewrite the process to ensure that it really was about minimum competency and public protection instead of a cash grab for test designers. We could finally protect the folks getting preyed upon by subpar law schools that know they’re ultimately not responsible for their own students thanks to the bar exam. But, in most states, we’re going to do none of that needed work because entrenched interests don’t want it.

Worst of all, many state supreme courts and bar examiners across the country flatly refused to attempt to repair the frayed confidence applicants have in the exam procedure.

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Applicants will study hard this weekend. Just like they studied hard in July. And in September. And for some of them, last February. And now in October. This group of applicants has been jerked around based on empty claims and ill-informed adherence to tradition and it’s not fair. Not fair to them and not fair to the public.

Hopefully the exam goes smoothly next week. But I’ve considered 14,000,605 futures and we only win in one of them. There’s just not a lot to suggest it will go perfectly in all the jurisdictions that are trying to pull it off simultaneously. It’s clear that the folks at ExamSoft are trying to make it work. But it’s an endeavor fraught with so much risk and run by examiners who have such naked contempt for applicants that it’s easy to see it going wrong.

But even if it succeeds at whatever passes for “smoothly” these days, damage to these applicants is already done and the ongoing drag upon the profession that is the unquestioned reliance upon the bar exam goes on.

Good luck applicants. We support you… because it sure looks like the people who ostensibly run this show don’t.


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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.