This Year Is Still Different: An Outdated Bar Exam in Troubled Times

July 19th, 2022 / By Deborah J. Merritt

** This post is coauthored with Sara J. Berman, Marsha Griggs, and Carol Chomsky. All four of us are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 10 scholars who have studied and written about the bar exam, licensing, and legal education for many years.**

Applicants for the July 2022 bar exam are buckling down for their final days of bar study. After two years of delays, remote testing, and other COVID-related changes, states have returned to traditional bar examination practices. For most applicants, this means two days of testing in large convention centers or hotel ballrooms. Following tradition, applicants will again answer questions from memory about a dozen or more doctrinal areas.

But this year’s examinees are different from those who preceded them. The pandemic overshadowed the entire law school career of 2022 graduates. Classes abruptly went online during their first year. Many received only pass/fail grades for their spring semester. That was essential relief for an upended semester, but the remedy deprived students of more nuanced information about their progress.

The pandemic continued to dog the class of 2022, limiting both work and externship opportunities. Many lost the chance to meet mentors, work in law offices, and develop confidence in their lawyering abilities. Second-year classes remained mostly online, escalating zoom fatigue and isolation. Even during their third year, when restrictions eased, extra-curricular activities and meetings were limited. Peers and professors hurried out of the room after class, reluctant to expose themselves to the latest COVID variant. Informal exchanges about the law, lawyering, and career prospects were limited for this class of aspiring attorneys.

And that’s not all. The class of 2022 experienced George Floyd’s murder at the end of their first year, a bloody attack on democracy and the Capitol during their second year, and a leaked opinion reversing Roe v. Wade during their third year. Whatever their personal beliefs about abortion, the leaked Dobbs opinion raised alarming questions about the Constitution, constitutional interpretation, and the future of other rights guaranteed by previous Courts—just as these students started studying Constitutional Law for the bar exam.

And then there were continued police shootings of unarmed Black people, attacks on Asian American women, Russia’s invasion of Ukraine, heartbreaking gun violence, and our ongoing failure to address planetary destruction. These are unsettling times for anyone committed to the rule of law. For law students still exploring their future as lawyers, the times weren’t just unsettling—they have been devastating. They may doubt both the rule of law and their own ability to affect the world around them.

Now these graduates must prepare for a difficult exam that they know bears little relationship to their practice as fledgling lawyers. Research by NCBE and others has confirmed this mismatch. A new exam may address some of these flaws, but that exam won’t be ready until 2026. Meanwhile, today’s graduates must recall hundreds of detailed rules from memory. They must also prepare to answer essay questions on conflicts of law, family law, secured transactions, and trusts and estates—all subjects that NCBE has decided need not be tested. And they will not have a chance to show their competence at negotiation, client counseling, and other skills that NCBE now acknowledges should be assessed.

As a profession, we have a responsibility to help today’s bar takers. Pandemic graduates carry a heavy load of mental distress. More than a third show symptoms of depression, and 11% have seriously considered suicide during the last year. Those burdens may impair their preparation for the bar exam and their performance on it. If they do, we can’t blame the graduates for the world that surrounds them. Nor can we blame the academic support faculty who are working double-time to help this group of graduates succeed.

No, we need to look to the profession and what we can all do to help. Several states are considering non-exam pathways to licensure. If an experiential education path had existed for current graduates, they might have built a strong sense of their lawyering efficacy during law school—while learning skills and reinforcing the doctrinal knowledge they will use in practice and. If supervised practice pathways existed, recent graduates could be demonstrating their knowledge and skills by assisting real clients and learning from supervisors this month, rather than by grinding through daily doses of multiple-choice practice questions.

We have confidence in this year’s bar applicants: confidence in their abilities, their grit, and their determination. But even in the best of times, less than three-quarters of graduates pass the bar exam on their first try. And the failure rates fall disproportionately on graduates of color, the same individuals who suffered greater physical and financial burdens from COVID; emotional stress from police killings and other manifestations of racism; and loss of important mentoring opportunities during their law school years.

This, we know, is not the best of times. Offer as much encouragement and support as you can to bar-takers this week. And get involved with activities in your state to reform our licensing system. Do it for both our graduates and the clients they will serve.

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