Is It Time to Let Go of the Bar Exam?
"Let's face it, the one thing all malpractice defendants and state bar disciplinary targets have in common is a bar number," says Hanson Bridgett's Gary Watt. "That's right, it's the bar-passers, not the exam-failers, who present a threat to legal services consumers. So how is it that the bar exam can be justified on performance grounds?"
July 28, 2020 at 07:38 PM
5 minute read
In his thoughtful commentary on the evolving October online bar exam, University of California, Hastings College of the Law graduate Shandyn Pierce questions the wisdom of such a grand experiment given all the perils facing recent grads in the real world and the surreal one—the land of the bar exam. Standing at the precipice, Pierce rightly contemplates the yawning chasm between graduation and obtaining a bar number and wonders if he (and other grads) should jump. But his piece renews a larger question: Is it time to relegate the California bar exam to anthropologists and historians?
Faced with the ultimate need to get from graduate to licensed practitioner, Pierce focuses on immediate obstacles and pitfalls attending the proposed examination. But his exposition really begs much larger, institutional questions. First, if it's not just a racket sustained by its own momentum, what does the very existence of the bar exam say about law schools? How is it that three years and thousands of dollars invested in legal education produces graduates whose acumen to practice law is presumptively doubted—and thus, has to be immediately examined?
What is it, exactly, that law schools are preparing students for? If the problem is the traditional law school focus on bar courses and regurgitation of basic doctrine (thinking like a lawyer), why is it that the bar exam focuses so heavily on bar courses and regurgitation? And if the "problem" is something else, such as the currently popular lack of practical training theory (acting like a lawyer), why is it that the bar exam is not entirely focused on practical skills instead of doctrine?
In the highly relevant and worthwhile internal examination law schools have been conducting nationwide since the Great Recession, practical skills and clinical programs have enjoyed both a greater consideration and enhanced valuation. But those programs have always existed, and students wishing to see what actual practice looks like during law school have availed themselves of clinical opportunities. Yet, the bar examiners consider such graduates equally suspect.
So, if law schools expose law students to ancient legal doctrine, bedrock legal principles, basic legal writing, and, at least for those willing to engage, practical skills—what is it that law schools have so miserably failed to do, as measured by the bar exam? Perhaps, as many law school leaders have argued, nothing.
That brings us to the bar exam. Is it the exam itself, with its own lack of an objective success rate and the ever-shifting pass/fail demarcation line debate, that is the real culprit and not the law schools? What is the bar exam testing for? Who is the bar exam testing for? Who benefits from the bar exam?
Let's face it, the one thing all malpractice defendants and state bar disciplinary targets have in common is a bar number. That's right, it's the bar-passers, not the exam-failers, who present a threat to legal services consumers. So how is it that the bar exam can be justified on performance grounds? How is it that the test can be passed by so many who go on to manifest what we are told the bar exam sifts out—lack of sufficient ability to practice law?
If something practical needs to be done, if legal services consumers need better lawyers, then why isn't skills testing something that is applied to lawyers, not to law school graduates? If a magnificent cottage industry has to exist to extract fees from anyone, why is it law school graduates—stretched as they are already at that point—as opposed to practicing lawyers?
During this time of massive law school restructuring, and COVID-19-driven bar examination reconsideration, what is real? Do law schools actually fail to prepare reasonably educated graduates ready to grapple with law practice? Are these individuals from all walks of life and with no less than seven years of higher education unworthy to practice law merely because they fail to pass the bar exam? Why, according to recent bar passage rates, are the ranks of unfit graduates swelling?
As nearly every practicing lawyer can attest, it's what happens after law school, not during it, that makes or breaks an attorney. So, unless we just want to maintain the bar exam as the arbitrary arbiter of those who pass go and those who do not, why not mandate a transition period—along the articles model or otherwise—as the actual gateway to a bar number? Why not presumptively issue one to law school graduates, subject to supervision and verification? And, instead of having Pierce and all of the other recent grads take a run at the chasm, why don't we toss the bar exam into it, instead?
Gary Watt is a person with a California bar number. Contact him at [email protected].
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