Public Comment on the Bar Exam

July 25th, 2022 / By Deborah J. Merritt

David Lat is hosting a “Notice and Comment on the Bar Exam” at Original Jurisdiction. Several commentators have offered thoughtful insights. Here’s mine:

One of the many problems with the bar exam is that it doesn’t test the knowledge and skills that new lawyers really need. The exam was designed based on “gut instincts” about that knowledge and skills but, as often is the case, gut instincts were wrong. The problem was compounded by well intentioned efforts to create a national exam, which has resulted in candidates memorizing a vast number of federal or “consensus” rules that they will never use in practice.

But now we have good evidence about the knowledge and skills that new lawyers actually use. NCBE’s recent practice analysis offers some insights, and the Building a Better Bar study (which I coauthored with Logan Cornett) offers more. NCBE is now building a better exam around those studies, but a written exam can’t capture many of the skills that are essential to lawyering–and it’s hard to capture the type of knowledge most new lawyers use in a uniform national exam.

States like Oregon, California, Minnesota, and Utah are considering much better alternatives, with Oregon in the lead. It is possible to assess lawyering knowledge and skills through either law school coursework (including clinics and other experiential work) or post-graduate supervised practice. For both of these pathways, bar examiners would make the final decision based on portfolios of work product and assessments from professors or others. And it is feasible to construct both of these pathways with sufficient reliability, fairness, and validity.

The benefits of change? Cheaper pathways to licensure for candidates, better protection of the public, and (most likely, given the stereotype threat that affects high stakes testing) a more diverse profession. What stands in the way? Outdated ideas about how lawyers think and work, legal education’s reluctance to embrace more experiential education, our profession’s reluctance to innovate, and good old fashioned protectionism (the bar exam may exclude more lawyers than these alternatives would).

It’s time to honor our avowed commitments to open the profession to all qualified candidates, protect the public, and increase diversity. The bar exam is not achieving those goals.