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With New York state legislators getting fed up with state bar examiners after a year of pandemic stress revealed long-standing rot in the process, there was bound to be reports from “working groups” assigned to study the issue and make recommendations on the future of the bar exam. Comprehensive studies are always welcome and necessary when considering broad reform to a licensing procedure that, while anachronistic, is all that many people have known.
But at what point is a “working group” just a lobbying group trying to pen a defense of the indefensible? Working groups are infamously drawn from the ranks of existing stakeholders inviting all sorts of thinly veiled mischief. We properly respond with eyerolls when the NCBE produces slick white papers declaring that the best way to license attorneys is the one that they just so happen to have a monopoly over. One would hope that anyone providing an ostensibly objective report wouldn’t be using the opportunity to push their own agenda in spite of the evidence.
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Alas, it looks as if there may already be some spin at play. A since locked down Tweet purporting to convey the internal dialogue of the Court of Appeals appointed bar exam working group revealed some pretzel-twisting acrobatics in an effort to get around the legislator-commissioned bar exam survey that showed the exam to be a complete mess. In an effort to wave away the 75 percent disapproval rating, the group is seemingly going to claim that the fact that the poll had a final sample size of only 10 percent or so justifies discounting the disapproval rating completely. The “squeaky wheels” hypothesis. It’s certainly a factor to consider, but ignores the fact that people fail to respond to polls for any number of reasons. If the sample size justifies discounting the results, it’s only marginally. Indeed, assuming an unjustifiably extreme selection bias in favor of unhappy applicants — say half of all unhappy people took part in the 10 percent sample — that would still show around 15 percent of all takers have a negative view of the process which should be unacceptable in any event. That it’s more accurately much higher than that is a raging red flag.
More incredible was the suggested response to the poll’s finding that 40 percent of respondents experienced tech problems of claiming that these were entirely the fault of the applicants having old computers. Never mind that everyone took the exam with technology that met the posted system requirements and everyone uploaded a mock exam successfully to even get to exam day. In other words, there’s a suggestion to write off tech problems with the classic Delta House motto, “you f**ked up, you trusted us.”
Maybe this report oversold how widespread this sentiment is within the working group and is instead a rogue bar exam defender. Let’s hope so. But for anyone hoping that neutral working groups are approaching the data on its merits and not brainstorming ways to dismiss it out of hand, stories like these should remind everyone to take future reports with a grain of salt. There’s a lot of disgruntled bar exam defenders out there trying to salvage the test they’ve staked their careers upon and if they aren’t directly involved in these discussions, they’re trying to work the refs.
Earlier: So It Turns Out The Online Bar Exam Totally Sucked, Like Quantifiably
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Joe 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.