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Let’s Not Toss Out the Bar Exam Just Yet

May 25, 2021, 8:01 AM

The upheaval of the Covid-19 crises forced many states to change their methods of administering the bar exam or to suspend the exam entirely during the past year. This provided an opening for some to argue that the bar exam has outlived any value it may have served and the time has come to move to an across-the-board “diploma privilege” of automatically granting a law license to all who graduate from an accredited school with a J.D.

This would be unwise for any number of reasons.

While the bar exam does test knowledge of basic legal rules in 12 fundamental subject areas, one cannot pass the exam based on memorization of rules alone. Both the multiple choice and essay portions of the exam require an analysis and reasoning to arrive at defensible conclusions. Individuals who lack the ability to reason through the types of materials on the bar exam are not likely to be able to reason through the far more complicated issues that will confront them in almost any practice environment. They should not be unleashed on clients.

We should strive to improve the exam so that it is an even better test of legal analysis, and so that it tests other skills as well (a project already underway), but to simply do away with any form of a pre-practice licensing exam would be to throw out the baby with the bathwater.

Moreover, the legal rules tested on the bar exam are not obscure or arcane points of law. Rather they reflect core information with which every lawyer should be familiar, just as every doctor should be familiar with basic anatomy and every accountant should be able to read a balance sheet.

Regrettably, there are some individuals who make it through law school who are nonetheless unable to reason at the basic level required on the exam. Nationally, in each of the past several years, about one in five J.D. grads has failed the bar exam on their first try, and about 12% of test-takers cannot get past the exam even after multiple attempts. These students make it through law school with, in my opinion, a great deal of faculty and administrative hand-holding, judicious course selection, and a boost from grade inflation. But only the bar exam can objectively verify that these law grads have the basic knowledge and reasoning skills to actually practice law.

Filling Crucial Knowledge Gaps

Of course it takes effort to prepare for the exam. It was recently argued in an Insight that the bar exam is “fundamentally unfair” to newly minted J.D.’s who must “put their life on hold” while studying for the bar exam. That complaint, however, assumes the very issue under discussion, namely that the bar exam serves no useful purpose.

For many, the seven or eight weeks of bar study fills crucial gaps in their legal knowledge, gaps that often exist because self-indulgent faculty members have failed to cover basic principles in favor of more arcane theory. One could just as easily say that law students must “put their life on hold” while going to law school.

Moreover, while many individuals choose to spend a full two months on full-time bar study, quite a few work during that summer, studying evenings and weekends, and only taking a few weeks off just before the exam for final review. Legal employers almost always accommodate requests for time off to study for the bar and often subsidize their future colleagues during this period. This is hardly life on hold.

Curbs Incentive for Admitting to Help the Bottom Line

Just as important as its role in screening out the unqualified, the bar exam is a necessary constraint on the worst impulses of law schools. Law schools are usually tuition dependent and there is a constant focus on the bottom line. Surely some schools would be tempted to admit even more woefully unprepared students to harvest additional tuition in a world where they did not have to worry about bar exam pass rates.

Faculty would also have no external discipline with regard to curriculum. Many tenured law professors would much rather teach seminars in their areas of research than plow through a survey course in criminal law or property. Even where schools continued to offer the course that now comprise the basic first-year curriculum, the coverage would vary wildly from school to school.

It is awkward to put the point bluntly, but there are just too many law schools, pushing too many weak graduates through their programs in order to keep the tuition revenue flowing to be confident that an across-the-board diploma privilege would serve anyone except perhaps law faculty and deans who would be relieved of having to worry about bar pass rates.

The practice of law has become more, not less, sophisticated in the last quarter century. Routine tasks that formerly kept lawyers busy have been and continue to be automated. Going forward, the only skill that clients will be willing to pay for is superior analytic ability. The existing bar exam, however poorly, does test for that. While it is flawed, keeping it is better than throwing open the gates.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Roger E. Schechter is a professor of law at George Washington University Law school where he teaches torts, copyrights, and trademarks. He has been a national bar review lecturer on torts for over 30 years.