Should We End The Bar Exam?

bar examCongratulations to our 2Civility interns, Julia Brook from the University of Illinois and Jessica Saitel from Loyola for passing the Illinois bar exam this past week. Jessica and Julia joined tens of thousands of recent law school graduates around the country taking the bar exam. Fortunately for them, they did not join a different trend – not passing the bar exam.

Bar exam passage rates have dropped precipitously over the past few years. We already know that the takers of the July 2015 bar had the lowest score in more than 25 years. In six states—Delaware, Iowa, Minnesota, Oregon, Tennessee, and Texas—scores dropped 9 percentage points or more.

Who’s To Blame for Low Bar Passage Rates?

There has been no shortage of ink spilled about why bar passage rates are their lowest in decades. Some blame the National Conference of Bar Examiners (NCBE), a Wisconsin non-profit that creates and scores the multistate portions of the bar exam. The NCBE’s detractors point to a glitch in an online testing company’s software that made it impossible for many July 2014 bar testers to upload their first day exam, making it psychologically more difficult for those testers to sit for their second day exam. As for the reasons the scores were lower this year, NCBE’s critics blame it on the addition of a seventh subject to the multistate exam, civil procedure.

The countervailing point of view is simpler. To quote NCBE President and CEO Erica Moesser in a 2014 letter to law school deans: “the group that sat in July 2014 was less able than the group that sat in July 2013.” “Less able.” In other words, the July 2014 law school graduates were, let’s say, not at as smart as their predecessors. (Bloomberg BusinessWeek was far more blunt).

Law Schools v. NCBE

As law school enrollment has declined, many law schools have admitted students whose credentials may not have been as stellar as those the schools would have admitted previously. But are law schools admissions standards to blame for the lower bar scores? Or is the NCBE itself to blame?

A recent New York Times “Room for Debate” covered both sides of the argument. Somewhat on the NCBE’s side, Professor Jerome Organ of the University of St. Thomas wrote:

“The fact that multiple factors might have contributed to the declines in bar passage in 2014 and 2015 does not negate the reality: The decreasing LSAT scores of each entering class of students over the last three years will almost certainly mean further declines in bar passage rates for graduates in the coming years.”

Firmly on the opposing end was Dean Nick Allard of Brooklyn Law School. His argument was not just with the lower bar scores, but with the entire bar exam itself: “No one who graduates from an A.B.A.-accredited law school with a strong G.P.A. should have to take the bar exam.” Rather, “the unregulated monopoly of the testing industry has masqueraded as the self-appointed guardian of professional standards.” As for Moesser, her statement on “less-abled students” is part of a “power grab” of a “self-interested lobbying group” issuing “highly misleading negative information [including] that law schools are admitting lower quality students.”

Where’s the middle ground between these two points of view? Wherever it is, Professor Deborah Merritt of Ohio State believes the ABA should step in: the ABA should “establish a national commission, independent of the N.C.B.E., to create a more meaningful bar exam … [that] could identify elements for a national test … [and] inform states choosing to maintain their own exams.”

The irony is that this is precisely how the NCBE and the multistate exams started in the first place, with an ABA commission.

History of the Bar Exam

Originally, most bar exams were conducted orally, either before a judge or by a lawyer already admitted to court. (Robert M. Jarvis, An Anecdotal History of the Bar Exam). Then, in 1855, Massachusetts became the first state to have a written bar exam.

Starting in 1880 with New Hampshire, states began to create central boards of bar examiners with state-wide jurisdiction. The reasoning, at least in New Hampshire, was that the system of referring applicants for examination to uncompensated boards or standing committees was not working.

By 1931, all states except Indiana had such a board. That same year, to address the wide variance in bar exams across states, the ABA propelled the formation of a national organization of bar examiners. In 1931, the National Conference of Bar Examiners was born. In the 1970s, the NCBE, using a grant from the American Bar Foundation, developed the six-hour multiple choice Multistate Bar Exam (MBE). According to the former Chair of the NCBE, Professor Margo Melli, the MBE allowed the legal profession to join other learned professions in requiring their members meet minimum national standards. The MBE also alleviated the burden on already overwhelmed jurisdictions unable to handle the massively increasing number of bar applicants. Finally, advances in testing research showed that it was possible to use a multiple choice exam to test one’s mastery of legal concepts. National standards, alleviated burden, and comprehensive testing. Those were the goals of the NCBE.

The (Alternative) History of the Bar Exam

Or were they? Rather than seeing the bar exam as a way to create uniform standards for admission to practice law, libertarian Allen Mendenhall sees it as a relic of “big-city politics during the Progressive Era.” In a piece for Newsweek (subscription required) titled “The Bar Exam Is Unfair and Undemocratic,” Mendenhall wrote:

“Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services … Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.”

According to Mendenhall, the result is that, both then and now, the burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school and take on substantial debt to pay both for law school and for the expensive bar prep courses.

Future of the Bar Exam

Which is it? Is the bar exam a protectionist enterprise that overburdens minority and low-income students, or is it a legitimate method of creating minimal standards that protect American consumers?

But more importantly, does the answer even matter? We are now solidly in a world where people are relying more and more on peer reviews and less on professional evaluations. Would it be sufficient to have the “market” decide which lawyers are qualified and which are not? Perhaps we should invest our bar exam resources in creating a robust peer review and disciplinary system. (Peer review alone would be insufficient; in his “consumer protection” response to Mendenhall, Professor Scott Fruehwald cogently explains why.)

In Washington State, people without law licenses are practicing something that looks a lot like law. In Washington D.C., the Supreme Court held that the North Carolina Board of Dental Examiners could not prevent businesses from offering the same teeth whitening services that dentists do, for a much lower cost. And one by one, states are adopting the Uniform Bar Exam as lawyers, and law schools, advocate for easier access to multi-jurisdictional practice. Even California is moving away from its famed three-day bar exam to a two-day format. Barriers are being lowered for entry into the legal profession. How far away are we from those barriers being eliminated completely?

In the end, the answer to whether we should end the bar exam doesn’t rest with me and you. Rather it rests with those tens of thousands of law school graduates who just passed their own bar exam. They are the future of our profession. They are our next lawyers and judges and partners and politicians. They will decide which direction our profession will go. So to them I say this: Congratulations on your bar success. You are now the flag-bearers for our brave new legal world. Take it and run.

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