My thoughts and prayers go out to the (tens of) thousands of students who are slated to take remote bar exams in several states (including large states like California, New York, and Illinois) a little over two weeks from now, on October 5 and 6. Many people (myself included) are worried about technological glitches that might plague such a massive online undertaking, but I will be hoping for the best.
When the dust settles on the summer/fall 2020 bar exam cycle, many commentators and analysts will likely want to revisit why we have (indeed whether we need) bar exams for legal licensure, and (assuming we retain bar exams) what such exams should look like going forward.
Diploma Privilege: Two Observations
Some folks in various states this summer advocated (albeit mostly unsuccessfully) for “diploma privilege,” an idea that means different things to different people but which, as a general matter, refers to an approach that allows law school graduates, under certain circumstances and subject to certain limitations, to be licensed without having to take and pass a bar exam. These folks may think the diploma-privilege idea makes sense not just in COVID-19 times, but in normal times too. That is a big topic for sure, and one I won’t have space to take up thoroughly today. I will, however, make just two, quick observations.
First, the way some states have implemented diploma privilege—by limiting it to or favoring graduates of in-state law schools—is, as I’ve written, blatantly unconstitutional. (Readers interested in this should look carefully at the earlier Verdict essay linked in the previous sentence.)
Second, because diploma privilege hasn’t been used extensively throughout the country in the modern era (during which time the number of law schools has expanded and the entrance requirements and attrition rates of law schools have fluctuated quite a bit), there is a lack of empirical data on the question whether the quality of lawyering would be affected by extending diploma privilege to graduates of all ABA-approved law schools in 2020. For example, resort to the experience of the state of Wisconsin is of limited value since Wisconsin has (albeit unconstitutionally) limited diploma privilege to graduates of schools located within the state—University of Wisconsin and Marquette.
And the academic indicators (e.g., college GPA and LSAT scores) of the student bodies of those particular two law schools combined are considerably higher than (and thus not representative of) the collective average academic indicators for students enrolled in all of the nation’s 200 (or so) law schools. (I should point out, here, that some diploma-privilege frameworks do not extend the privilege to graduates of all ABA-approved schools; Utah, for example—and Oregon as well, as least as regards schools outside of Oregon—limited the privilege that it adopted on a temporary basis for this COVID-affected year to graduates of law schools, of which there are probably fewer than 100, that have recently enjoyed high first-time bar passage rates.)
The Bar Exam: Three Provisional Thoughts
But assuming that even after 2020 some kind of licensing exam is necessary and proper for the legal profession, the question becomes: Are the bar exams that we currently give around the country the right kind of exams? This too is a big question, but I want to offer three provisional thoughts.
The first is that we should accelerate the trend of making bar exams more standardized throughout the nation. Having each state craft a unique exam which persons wishing to practice in that state must pass limits geographic mobility and constricts job opportunities at a time when the profession should be looking for ways to make it easier for people to use their legal training for the benefit of clients in need of legal services.
For this reason, I view as a generally favorable development that more than half the states have in the last decade or so adopted the so-called Uniform Bar Exam (UBE), which is “uniformly administered, graded, and scored by user jurisdictions and results in a portable score that can be transferred to other UBE jurisdictions.” There are some nuances with the UBE that may require some states to supplement it with a small state-specific component, but a move in the direction of uniformity and portability is a good one.
Having more widespread adoption of the UBE also puts pressure on states to set their passing-score threshold within a narrower range, which makes sense. Can it really be that California regulators are qualitatively more cautious about protecting consumers of legal services in their state than their counterparts in other states are, and that this is the reason California maintains a higher passing-score threshold than most? Such a question is more pointed when states use the same exam that other states are using, such that the rejoinder cannot be “you can’t compare our threshold to other states’ because we are using a different test altogether.” (I should note here that the California Supreme Court recently lowered, on a permanent basis, its so-called “cut”—that is, passing—score, in part because it didn’t have a good answer to the question why its threshold was universally understood to be much higher than that used in other large, industrial states. Right now a question being pressed is whether California should apply its new, lower threshold score to people who failed the test in recent years but who would have passed under the new threshold—a very fair question to ask.)
The historical rationale for each state having a distinct bar exam has been the notion that in law (unlike, say, in the medical fields, where the fact that patients in all states share a common human anatomy might explain why there has long been a national medical board exam) each state has a different set of statutes and common law principles, and people licensed to practice in a state need be well-versed in that state’s legal specifics. But as my fellow law Dean Erwin Chemerinsky observed a handful of years ago, “the truth is that basic principles of law do not vary from state to state. And lawyers can learn the quirky specifics as they go. Forcing students to memorize detailed, state-specific rules, most of which they will never need to know and which they will promptly forget, does not ensure competence.”
My second suggestion for reform has not been the subject of as much discussion as has the benefits of uniformity. It is that we should rethink the very content and format of bar exams, regardless of how distinct each state’s exam is. If bar exams are intended to produce competent lawyers, shouldn’t the exams simulate the kinds of tasks competent lawyers are asked to perform? I think Dean Chemerinsky is right that having bar takers “memorize detailed, state-specific rules” makes little sense, but perhaps we shouldn’t focus on their ability to memorize even nationally prevalent rules. That is, maybe we should move away from the focus on memorization altogether.
To this end, I think states that include a “performance exam” component in the bar exam—in which students are given some fictitious but plausible set of legal and factual materials (statutes, regulations, judicial opinions, correspondence, memos, media accounts, etc.) and then asked to draft documents (memos, briefs, contracts, etc.) within the confines of this defined, albeit made-up realm of governing law and fact—are on the right track. Test takers responding to these performance exam hypotheticals undoubtedly draw on the broad and deep legal knowledge and instincts they gained during law school. People, even very smart people, who never went to (or paid attention in) law school could not generally do well on these performance exams, but takers needn’t obsess over memorizing technical specifics, since those specifics will be given to them in the materials. Instead, students are tested on their ability to read, analyze, harmonize, and choose between various legal materials and authorities and factual accounts, and to structure and present in clear prose cogent arguments in favor of or against various ways of understanding the state of the law in the legal universe in which they have been dropped. It seems to me these are many of the skills we want good lawyers to have—and ones I would look for in hiring a lawyer—such that we should be testing on them directly.
Third and finally, if we want the bar exam to look more like the real-world practice of law, perhaps we should consider making it somewhat less time-pressured. Bar-exam takers are generally given only a couple of minutes per multiple-choice question and typically only an hour per essay. (Performance exam essays often, smartly, offer more time.) I think there is a real danger that we are overemphasizing speed over rigor.
It is true, of course, that some lawyers must think and act on their feet not infrequently. And time-pressured exams might be assumed to do a fair job of measuring quick thinking. Lawyers who make oral arguments in appellate tribunals must process information and ideas and respond fast. So must trial attorneys deciding whether—and in what way—to object to (or defend) the introduction of testimony that is, at the same moment, coming out of the witness’s mouth, or, in the case of a document, being handed to them for the first time.
But most lawyers focus not on oral advocacy, but rather on written work—correspondence, motions, memos, briefs, contracts, releases, settlements, corporate filings, and other documents. That should lead us to ask whether the skills required in drafting these documents correlate to the skills measured by time-pressured bar exams (and perhaps other time-pressured law exams, like the LSAT and 3-hour law school finals). I don’t know what the data on this would show, but it is surely something the legal profession and legal regulators need to look at much more carefully than they have.