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The bar exam: Catching up on the conversation

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If you’re considering applying to law school, or in your 1L year, you may have only vague understandings about what the bar exam is. I know I did. Maybe you’ve seen some of the recent pieces arguing about how it should be changed or abolished.

It’s like joining a conversation halfway through. Let me catch you up:

The bar in a nutshell

The bar exam is, first and foremost, the huge test you have to pass in order to be a lawyer. Graduating from law school gets you a JD degree, but in order to practice law you must also “pass the bar” in the state in which you want to practice.

Each state’s board of bar examiners sets their own process and their own rules, though there are similarities: generally, it’s two long days of testing (in a few states, three days), offered only in late July and February of each year. So, most students graduate from law school in May and then study for the bar intensively in June and July.

It’s a high-stakes, closed-book test that requires a lot of memorization of legal rules across a wide array of important areas of law. Multiple-choice questions (the “MBE”) test the applicant’s knowledge of Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. Then, the Multistate Essay Examination (“MEE”) presents essays with questions drawn from these and additional areas such as Trusts & Estates and Business Associations, with possible additional areas by state.

Applicants will have taken most of the bar-tested topics as classes in law school, but in order to pass it, applicants generally pay for an intensive “bar prep” course or self-study for 6-10 weeks prior to the test.

Results vary by state

Even though 39 states plus DC and the Virgin Islands have adopted the Uniform Bar Exam (the “UBE”), actually being licensed to practice happens state by state. That is in part because, in addition to passing the test itself, state bar examiners require an applicant to go through an extensive “Character & Fitness” process which requires painstaking disclosure of issues such as any disciplinary actions, employment terminations, arrests and other legal issues (even if dismissed or expunged), past-due debt, and bankruptcies, and to provide character references.

In theory, then, the bar exam process tests whether someone is qualified and competent to be licensed as a lawyer under the standards of that state.

Pandemic and the #Barpocalypse

The COVID-19 pandemic has severely disrupted many longstanding practices, the bar exam among them.

Traditionally, the bar has been held in convention centers and banquet rooms, with hundreds of examinees packed together for two days. State bar examiners struggled with how to adapt to the realities of holding a bar exam in a pandemic, where moving forward in the old model would be a potentially super-spreader event.

This disruption has empowered a broader conversation about reforming or abolishing the bar exam altogether.

The in-person model had allowed bar examiners to be intensely strict about what examinees are allowed to bring to the exam (i.e., basically nothing; here’s the list for Missouri, for example). Examiners also enforce strict time limits for each section. Perhaps you took the SAT or ACT in a similar model.

So, states were hesitant to move online over concerns about increased possibilities of cheating on this very difficult and important test. In summer 2020, some states cancelled or delayed the test, sometimes at the last minute. Others went ahead with traditional, in-person tests and made examinees sign a liability waiver stating they were voluntarily assuming all risk of exposure to COVID-19, underscoring the danger to the examinees.

In response to these issues, many examinees as well as lawyers and legal educators argued for allowing pandemic law grads to start working under a “conditional practice” or “supervised practice” exception, or simply granting “emergency diploma privilege” to graduates of accredited law schools. Oregon, Washington, Utah, Louisiana, and DC adopted some form of short-term diploma privilege. Justia has gathered information about what each of the states did in response to COVID here.

The solution—and the new problems

Eventually, many states switched to an online exam to avoid contagion, but many problems ensued in that untested transition, as well. For example, California delayed its mid-2020 exam from July to October, moved online, and adopted aggressive “remote proctoring” (anti-cheating) software by ExamSoft that videotaped the examinee during the whole two-day test. Examinees suffered significant technical issues with the software, crashes, identity theft, and poor facial recognition of people of color.

Worse, widespread technical problems with ExamSoft continued across many jurisdictions in the June 2021 online exam, with many test-takers losing valuable time.

An analysis published by four distinguished members of the Collaboratory on Legal Education and Licensing for Practice looked at the scores for the 2020 pandemic bar exams and concluded there was a dichotomy: some candidates had the financial resources to study through the uncertainty and delays, and they did indeed rise to the challenge and passed the bar in equal or greater percentages than a “normal” year. However, the total number of new lawyers dropped significantly – for example, 25% in Texas – as many new JDs did not sit for the pandemic bar exams at all. They noted that, “The fall-off in exam takers helps explain the rise in pass rates: Only candidates with the resources to navigate pandemic-related obstacles took the exam…. The high pass rates on the 2020 exam underscore that the current bar exam is a test of resources—not of competence to practice law.”

In short, before the pandemic, the bar exam had been a feared and expensive rite of passage. In 2020-2021, it literally required examinees to risk their lives, go to impossible lengths, or just keeping waiting and studying in order to take the test that would allow them to use their JD degree. Until they did, they could not work as a lawyer.

The future of the bar exam

This disruption has empowered a broader conversation about reforming or abolishing the bar exam altogether. Modern law practice, abolition advocates have noted, is narrow – you practice in criminal defense or real estate law or personal injury litigation, and while we should teach the breadth of areas in law school, lawyers do not need to show competence in all areas in order to be competent practitioners.

Furthermore, modern law practice does not rely on memorization of rules. In fact, it would be malpractice to rely on the general, “bar exam type” rule rather than researching the statute and cases on point in the governing jurisdiction.

Finally, there is a privilege argument; making JDs study for and take the bar exam is yet another financial hurdle acting as a gateway to the profession, whether we are in a pandemic or not. Indeed, the bar exam has exclusionary, racist roots: in the 1870s, many states had diploma privilege, but in 1921 the newly-formed American Bar Association pushed states to abolish diploma privilege, added other licensing requirements, and required applicants to identify their race, stating that “it has never been contemplated that members of the colored race should join this association.” It is no accident that these additional barriers were enacted as a rising number of immigrants, Black, and Jewish people sought to join the legal profession. The racial disparities in bar passage today are stark and well-documented.

There are lawyers who say that the bar exam is just the way things have always been done; they had to take it, and so do current law grads. In my opinion, that’s neither true nor particularly important. Regulation of the legal profession has changed before (for example, in Abraham Lincoln’s day, it was a loose apprenticeship model with no law schools and little oversight).

Change on the horizon

The practice of law and legal education continue to evolve. It is not unreasonable to ask whether current systems are effectively serving the purposes intended.  

One important question is whether the bar exam helps prepare law grads to serve the public and practice law. Prof. Deborah Merritt and Logan Cornett co-authored an extensive report called “Building a Better Bar: The Twelve Building Blocks of Lawyer Competence” in October 2020, which identified twelve key competencies that new lawyers need to be successful, noted the significant misalignment of a closed-book, issue-spotting bar exam with what new lawyers actually need to know, and made concrete recommendations for changes to the bar exam, including making it open-book, with a much greater focus on lawyer skills.

We know that some change is coming. Even before the pandemic, the National Conference for Bar Examiners (NCBE), which develops and produces the bar exam in most jurisdictions, announced that it is indeed working on changes to the bar exam. They are not considering making it open-book, but changes are expected to include testing fewer subjects and using some different formats, like scenario-based questions. At this point, much remains unknown or undetermined, and changes are expected to take 4-5 years.

An alternative pathway to licensure

Individual states can also consider change. Oregon was the first state to propose long-term changes since the pandemic hit, announcing in June 2021 that a task force recommended to the Oregon Supreme Court the addition of two alternative paths to licensure: an Oregon Experiential Pathway, under which Oregon’s law schools would design an intensive 2L-3L curriculum to teach key competencies for providing legal services, and students would submit a “capstone portfolio” proving their minimal competence) and a Practice Pathway akin to apprenticeship, where law grads would work under the supervision of a licensed attorney for 1,000-1,500 hours and submit a portfolio of work. The Oregon proposal frames these as alternative paths to licensure, meaning that, if they are adopted, law graduates could become attorneys licensed in Oregon by taking the bar exam or by successfully completing either pathway’s requirements. 

In my opinion, Oregon’s proposal effectively responds to the criticisms of the bar exam as outdated, overly broad for the reality of current practice, and divorced from the skills needed for practice. Hopefully other states will follow Oregon’s thoughtful and proactive example and consider adding additional pathways to practice. Heavy hitters New York and California already have task forces to consider changes to their bar exams.

In conclusion, I don’t know what the bar exam will look like in your state by the time you graduate from law school. But hopefully this background will help you understand and join the ongoing conversation about what it should or could be.

A few notes in closing

Some caveats: The views expressed herein are mine and not those of my employers. Similarly, all errors are my own. Please reply in the comments to add your own perspectives and information.

Also: I know I failed to capture the intricacies of the various state requirements and procedures. For example, in Wisconsin you don’t have to take the bar if you graduate from a Wisconsin law school (aka “diploma privilege”). California has paths to take the bar without graduating from an accredited law school, and an especially difficult bar to pass in exchange. And I did not try to address when and how one might “waive” into another jurisdiction and the value of the UBE in that process.

Law students and prospective law students should make sure to understand the rules for the state(s) in which they wish to practice and register for the bar exam accordingly.

Jen Randolph Reise Jen Randolph Reise teaches business law as a visiting professor at Mitchell Hamline School of Law, the first U.S. law school to launch an ABA-approved blended learning J.D. program. She is a securities and corporate governance attorney by training, and has worked both in private practice at a large Minneapolis firm and in-house at a public company. She has also founded tech-ed startup JD Navigator, with advice for people considering law school.