Law Schools

NCBE Touts Poll, 'See, People Who Don't Know What A Bar Exam Is Think We Need Bar Exams!!!'

This is a stunt, and a bad one.

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Excuse me, but have you seen our poll?

This is what desperation looks like, folks.

The National Conference of Bar Examiners, the embattled industry group, has spent the last several months putting out racist and sexist white papers, decrying online exams, furiously backtracking and offering support for online exams, and passing along threats to deny licenses to critics — only to see in-person exams test positive for COVID, online exams crash, and academic research reveal that bar exams are pretty useless at protecting the public. Now, on the brink of a wave of online exams fraught with issues, the organization is rallying behind a new poll that ostensibly shows Americans “overwhelmingly” support in-person bar exams. And it’s a sad poll.

The NCBE commissioned this research itself, using YouGov America — the entity that recently discovered that most Americans want Joe Rogan to moderate the presidential debates — to distribute the poll. What they came up with is this:

Don’t think we aren’t catching the shameless effort to play both sides. The “bar exam” is an overwhelming winner when in-person and online are taken together, but the online question is tagged with “even if people can cheat on it” in order to make sure it’s never going to overtake the preferred in-person model.

Look, there’s not a lot to say about this poll that wasn’t laid out by Natalie Anne Knowlton, who nuked it from space already, but her thread basically boils down to this:

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There are so many problems with a poll like this, which sets up the in-person requirement behind so many caveats it’s a joke. We’ve already had in-person bar exams and know that they aren’t actually complying with these protocols. Indeed, state bar examiners are rewriting public health requirements to hold their tests to hold tests that “comply.” The polling gurus at FiveThirtyEight have a segment called “good use of polling, bad use of polling” and this is squarely in the latter camp.

But what’s really sad for the NCBE is that its “overwhelming” figure is so low. Sixty percent is not great when you’re defending an institution that’s been a mainstay for generations. Average Americans don’t understand the bar exam beyond knowing “that’s just the way things are always done” and 40 percent of them are already on board with “maybe this isn’t a good idea.” Even in the post-pandemic version of the question, the test only received 70 percent support. And that number would likely be quite different if the question asked, “Should a person who spent three years being trained and tested at an accredited professional school have to take an additional one-time test or would you prefer a different plan to ensure all professionals ‘keep up’ their licenses throughout their careers?” — a question that more accurately tracks what diploma privilege advocates are talking about.

Also, how is this poll not damning for the NCBE itself? The organization is founded on the core belief that the public isn’t smart enough to know what makes a good lawyer. And yet, when legal professionals start questioning the efficacy of the exam and publishing research undermining the NCBE’s mission, they stake out their defense upon “the hoi polloi knows we need our exams!”

Alas, the audience for this poll is assuredly the state legislators who have started asking why applicants are being put through this when the data doesn’t back up the claim that the test actually protects the public. This is the supposed silver bullet that will scare local politicians off of messing with the NCBE’s testing monopoly. “Don’t listen to those lawyers, law students, and legal academics… your constituents love bar exams!”

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For those legislators, just remember that effective regulation shouldn’t be crafted by random polls. There is no special significance to the bar exam when it comes to building a profession that guarantees that effective representation is available to the public. It’s a tool created in a long-gone era when most lawyers entered the profession with little to no formal training. Imagining a better regulatory regime requires reevaluating the system from the ground up.

And there’s no place in that process for being wed to polling of people who have no idea what legally licensing is even about.

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.

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