Law Schools

New York Bill Seeks Temporary Open Book Bar Exam And Everyone Else Should Too

This is basic common sense, so I expect it to fail.

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While there are some jurisdictions throwing caution to the wind during the pandemic and telling applicants that toughening up and not dying of respiratory failure builds professional character, most are sticking with the online version for the time being. Was the online exam a horrid mess? Absolutely. But it didn’t kill anybody and clearing that extraordinarily low bar is shockingly what passes for “good” these days.

But it shouldn’t be. It’s better than an in-person exam, and has the potential to be a perfectly viable substitute, but the national experience with the October exam — racial bias, massive cheating flags, applicants urinating on themselves or being forced to quite because of mensuration, a woman sat still through LABOR to avoid getting dinged by the software — managed to get most people through a truncated test, so bar examiners decided to try it again.

In fact, they decided to double down! Despite acute problems stemming from proctoring algorithms that flagged applicants for blinking excessively during a shortened version of the bar exam, jurisdictions decided to tackle the full exam this time around. Because the bar examiners had to take the full test (unless you’re the people writing the bar exam), so these kids have to do the same thing. Except it’s not the same thing. Just as I didn’t take the bar exam walking uphill both ways in the snow — it was July, but you get the point — I also didn’t take it under buggy surveillance during a global pandemic. This isn’t even in the same ballpark of testing experience.

But the full test it will be. Sit longer without bathroom breaks staring at the screen without moving… or else! And remember that disability accommodations provide for more time so this extends their forced panopticonic imprisonment even longer still.

New York Assemblymember Jo Anne Simon introduced legislation to allow the bar exam to be administered open book if the exam is remote. It’s not an entirely novel concept. Indiana was forced by circumstances to offer an open book exam when its online provider failed and the state was forced to give the exam over email.

This would all be obviated by administering the bar exam as an open book exam. Lawyers practice law by reference to texts, not by memory. Not only would this reflect the reality of law practice but would eliminate the need for the intrusive remote monitoring software, including facial recognition of test takers, during the upcoming February 2021 bar exam.

Let’s all say it again: “the practice of law is an open book exam.”

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The resistance to open book exams exposes the critical lie at the heart of the bar exam industry. We can’t have open book exams, because too many people might all get sufficiently similar “right” answers. And this presents problems because despite billing itself as test of minimum competency, the test actually scales itself to ensure a certain percentage of people fail, thus justifying the need for the test in the first place (to keep out the people who it decided to fail).

An open book test is a more realistic simulation of the practice of law; it would yield — assuming no post hoc thumbs on the scale — results that better gauge the achievement of minimum competency, and would avoid almost all of the pitfalls of online exams.

If you’re in New York, get out there and advocate for this common sense bill. If you’re in another jurisdiction, send this bill to your own legislators and ask them to follow suit. The harm to the public is not in “lawyers who know how to research,” it’s too many who try to invoke “normal scrutiny” from memory.

Test lawyers like you want them to practice. Test lawyers like human beings. Test lawyers open book.

Earlier: California Bar Exam Flagged A THIRD Of Applicants As Cheating
Online Bar Exams Rely On Facial Recognition Tech And Guess What? It’s Still Racist!
Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness
Indiana Junks Online Bar Exam Format, Will Run Test Over Email
ExamSoft Tells Senators That Facial Recognition Problems Are Everyone’s Fault But Theirs
The Nation’s Top Defender Of The Bar Exam Knows Exactly How To Value Diploma Privilege Systems

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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.

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