Legions of aspiring lawyers recently sat for licensing exams administered by their respective state bars. Was it worth the effort? Here’s my take.
My very first client after law school posed an interesting question. She was a creditor who was unsure as to whether she was a secured creditor. She wanted me to find out where she stood in a priority dispute against other creditors, who may or may not have been secured, and a trustee in bankruptcy. She gave me some facts (about a half page’s worth) and refused to answer any questions. Moreover, she wanted me to give her the answer to her problem within a half-hour (she was apparently worried about over-billing), and forbade me from consulting the statute, reading any security agreements, or doing anything else a competent UCC lawyer might do. I nonetheless responded, telling her some of the issues, without reading the UCC, without reading the security agreements, and without having much idea about UCC law.
But before you report me to the ethics committee for violations of various duties, keep in mind that my conduct was fully sanctioned by the Bar. After all, my client was a mythical one and I was a potential lawyer existing only on the pages of the bar exam.
I have been haunted since the bar exam by a nagging question: What was the point of the exam? I had spent roughly $1400 in application fees and bar review courses and who knows how many hours in preparation for the exam. In addition, since I was teaching a class at the time, I no doubt traumatized my students as well. While I knew the chances of failing the exam were slim, given the 93% pass rate, I did not want to be in the minority that did not pass. So, I spent a great deal of my few remaining days of freedom studying for an exam whose purpose was elusive to me.
After answering the first essay exam question (the UCC one posed above), I had concluded that the bar exam’s purpose was to teach young lawyers to violate ethical standards, skimp on research, and give bright-line answers to questions that may have no bright line rules. Clearly, this was not the intended goal of the bar exam. But, then, what is the goal?
I submit that the Bar Exam, as currently formulated, has no clear goal. Alternatively, if there is a clear goal that I am missing, then the goal is probably redundant to goals supposedly achieved in law school. Insofar as the exam adds nothing new to the formula, it should either be waived for law students who have demonstrated their competence in law school or it should be changed so that it fulfills a more useful, non-redundant purpose. As an added bonus, law students would save money by not having to invest in bar preparatory courses that instruct them on how to take an exam that evaluates useless or redundant standards.
Possible Goals of the Bar Exam
I preliminary question must be: What are the goals of the bar exam? I submit four alternatives: (1) to test the student’s ability to spot issues, thus getting the student to think like a lawyer; (2) to test the student’s knowledge of basic law, including areas in which the student will never practice; (3) to increase the Bar’s coffers through bar application fees, and; (4) to restrict the number of lawyers and thus raise the wage level of attorneys in Utah.
The fourth possible goal is the easiest to eliminate in the case of states like Texas and Utah. Utah consistently has a pass rate above 80%, with Texas fairly close behind at 76%. Obviously, not many people are being eliminated from the market of attorneys able to practice in those states. Although I have no support for this, I suspect that those that do not pass may have not passed because they were having more pressing life issues at the time— not because they are incompetent. Nonetheless, a 20% fail rate is low. Thus, if the goal is anticompetitive, the Utah and Texas Bars are amazingly incompetent monopolists. In contrast, California and Puerto Rico are more successful at erecting barriers to entry, each having pass rates of less than 50%.
Similarly, the bar application fee does not appear to be a valid reason for the bar exam. After all, administering an exam is a costly process, forcing admissions personnel to take time out of their lives to: (1) escort test takers to the bathroom so the test takers don’t collude and (2) walk up and down the examination room to increase the anxiety of already nervous test takers. Paying attorneys to read the examinations is also a costly proposition. Clearly, a better alternative would be to require “initial” members to pay a $400 fee, and the fee would decrease after the first year. The fees would be more valuable because the costs of the fees (the bar exam) would be eliminated. Thus, fee acquisition does not appear to be a legitimate goal of the bar exam.
Perhaps a more compelling argument is that the Bar Exam tests whether students are capable of thinking like lawyers, spotting issues and providing legal analysis of those issues based on the facts, the law, and the policies and implications of the combination. This would be a compelling argument were it not for the fact that most bar applicants just spent three years practicing these same skills. What law student has not been asked: “What is the issue?,” either in a class or on an exam? If students cannot spot issues and write essay exam answers by the time they take the bar exam, how on earth did they pass their classes?
One possible answer is grade inflation. Because grade distributions are posted by professor, professors have an incentive not to fail people. If a professor failed students, the following class of students would be less likely to take that professor’s courses. The implication would be that the professors who fail students would eventually end up with class rosters of zero students, thus eliminating classes that the professor wished to teach. Moreover, no law student is going to tolerate a failing grade (because all law students are clearly above average and thus deserve grades no lower than an A-), and will thus challenge the professor. No professor needs the abuse, and a safer route would be to give the student a stern warning of the student’s lack of performance: Namely, a B+. The alternative, failing students, would cause many a law professor to be without congregations of students to whom they could preach, and tensions on law school faculties would rise as colleagues burst into each other’s offices and shouted, “what is the issue?”
An alternative answer is one I think the Bar would support: Namely, that certain Texas schools are of such good quality that most students from those schools can issue spot and write effective essay exam answers. If true, this would, by implication, mean that the people who do not pass are not from these Texas schools. But this does not support the need for a bar exam: It supports the argument that there should be no bar exam (at least for students hailing from Texas law schools). In other words, because Texas law students are quality “outputs”, they should be exempted from taking the Texas Bar, much like Wisconsin students are quality “outputs” and are thus exempted from taking the Wisconsin Bar. Non Texas applicants could take a bar exam to insure that they are able to spot issues and write essays.
However, the Wisconsin model presents some questions. First, what about reciprosity between states? If Texas does not have a Bar exam, then how are Texas students going to waive in to DC? I suspect that this is not an issue for the majority of Texas students. I would suspect that most Texas graduates remain in Texas. Those that do not could always take the bar exam along with the non- Texas applicants. But, if we believe that the bar exam serves some purpose, then we should not do away with it all together. Thus, we must look for another answer.
A final possible reason to have a bar exam is to test the applicants’ knowledge of basic law. Students in Texas get tested on approximately twenty-three different subject categories. Why stop there? Texas could have easily added Antitrust Law, Intellectual Property, Immigration Law, Labor Law, and so on. It seems arbitrary to add some topics and not others. You could argue of course, that certain classes have universal practicality: Evidence, for example. But this clearly is not true for family law, unless perhaps Texas lawyers have higher divorce rates than lawyers in other states and need to be prepared. While there may be many useful concepts learned in a course in family law, it does seem arbitrary to place that subject on the bar exam while excluding others.
The topics listed on the bar exam caused many students to only take courses which are covered on the exam. As a law student, I would many times ask my fellow students why they did not take course X, in which they were very interested. The answer was inevitably “the Bar,” and the need to have a background in one of the covered topics. Alternatively, many rebels only took course which seemed interesting, or took courses from professors who had actual teaching skills, or some combination of the two. These students sometimes paid dearly in the summer, as they would be forced to watch a paid BarBri lecturer from a law school which they did not attend outline the basics of the courses they did not take in law school. A more efficient method of accomplishing the same goal would be to require students to take law school classes in whatever the Bar wanted the students to study without forcing them to take an expensive review course in preparation for a needless examination. Eighteen weeks of class would provide a more in-depth examination of the topic than one day in Bar-Bri. And it would cost less. The drawback would be that students would be unable to take the courses in which they are interested, which would make the second and third years of law school much like the first. It would also dramatically impinge upon the academic freedom of the professor conducting the course, and foreclose opportunities for students who choose not to practice in areas tested on the bar exam.
Thus far I have only addressed the essay exam. But what about the multiple choice portion of the exam? Clearly, one has to spot the relevant issues and know the relevant law in order to distinguish between answer “D” and answer “C”. But how often are issues so clearly articulated in reality? Moreover, how often in reality would a new attorney be required to give a “yes” or “no” or some other finite, discrete set of possibilities off the top of her head? In addition, given the pervasiveness of bar review courses which guide students as to the pitfalls of various examiners’ trickery, the multiple choice portion fails to test anything other than how well BarBri prepared the student.
I may have overlooked some other, more noble goal. Perhaps the Bar Exam is a character building exercise to determine how students react under pressure. I can answer that quite simply: Whenever I was faced with time pressure on the muti-state portion of the exam, I chose “B.” I figured I would get 20% of the guesses correct, assuming a random distribution of answers. I have been unable to transfer this skill into my work at the Justice Department because I was never asked a multiple choice question. I suspect that the Bar Exam is equally poor at determining how other applicants react to time pressure.
A More Useful Exam
Given the current exam’s inability to test the applicant’s skills as a budding attorney, the logical question is how to create a more useful examination. Alternatively, perhaps we should rid ourselves of the exam altogether.
Again, eliminating the exam is not necessarily a bad idea: Most Texas bar applicants are Texas law school graduates wishing to stay within the state. Given the outstanding quality of Texas law schools, it may be wasteful to administer an exam. Thus, a model such as Wisconsin’s seems efficient in the case of Texas.
Another alternative is a one day “performance” based test. Many states have implemented performance tests as an addendum to the essay and the multistate exam. The performance exam as currently rendered consists of one or two 90 minute “skills” questions. Each applicant receives a case file and a library, and is assigned a task and must apply the research provided to them to perform the task. But the performance test is given after two days of “essay” writing and multiple choice. Since these two elements appear to be pointless, a more efficient exam could be administered.
I propose a one day, six hour performance examination. The applicants could be given two “cases”, complete with legal research (some of which would be useless while other portions applicable), a set of relevant facts, and a laptop in order to answer the question in legible font. The applicants could be given three hours per case. This would allow for more reasoned and thorough answers to determine the applicant’s ability to analyze facts and the law. This should be sufficient to determine whether the student is a good candidate for admission and should be permitted to take the vows in the priesthood, clergy or ministry of the legal profession. At the end of the examination, each student would receive a reprimand from his or her imaginary firm, stating that the student is not generating sufficient billables. I can think of no exam that could be more realistic.
But even this drastic proposal has one flaw: It fails to take the BarBri factor out of the equation. For those you who have not taken a bar exam in a while, BarBri is the leading bar preparation course. In every state, BarBri has former law students taking bar exams, memorizing questions, and then submitting the information to BarBri for compilation. BarBri knows what each state likes to test on, and structures its lectures accordingly. Most students sign up for BarBri, and each pays $2495 for the honor of sitting and listening to several law professors lecture on topics on which they have been paid to lecture. It is not unlike law school, except that the BarBri professors are often videotape. Many may no longer be with us in this life. Moreover, BarBri provides schedules to follow, tests to take, and other forms of preparation. BarBri is thus ever-present for most first-time examination takers. As the student representative will tell you your first year of law school, you are “so screwed” without BarBri. That’ll be $2495, please.
However, it would be hard for one to imagine how BarBri might prepare students for the performance test, especially if the substantive law changes consistently and randomly from year to year. Topics could be on any facet of law, since the only guiding force for the students would be the cases provided in their case files: Anything from Antitrust to Maritime law to Intellectual property could be asked. This would prevent BarBri from preparing the student in any way, except possibly that BarBri might teach the student how to write a memo. If the student did not learn that skill in law school, then she deserves to pay BarBri $2495 for the learning experience. Still, the performance test does not eliminate many of the administrative costs of the exam. Moreover, many students, out of fear, would continue to pay BarBri just to relearn how to write a memo the “BarBri” way.
A final alternative could be a return to the articling process. In the days of yesteryear, depending upon how far back one goes, budding lawyers studied for a year or more under the supervision of a more experienced attorney either just after leaving the farm, high school, college, or after graduating from a law school. These more experienced attorneys would work closely with the new lawyer, and would determine the new lawyer’s competency to practice law after a year. This articling method could work in Texas as well. New attorneys could apprentice either as a clerk for a judge, an associate in a law firm, or even in a government position. Their immediate supervisor(s) would write a letter to the Bar at the end of the year, commenting on the applicant’s ability to practice law.
There are two problems with this method, however. First, the articling system could be abused by senior attorneys, who could use it to force the candidate to be a slave with the explicit sanction of the bar (rather than do so implicitly by the present practice of imposing slavery by the device of calling the candidate an “associate”). Moreover, the training is likely to range from outstanding to wholly inadequate, or the useless by using the candidate as a runner for the supervising attorney or as office help in operating the copying machines, keeping the office clean and making sure the coffee is hot. There is even the risk that the candidate might be called an “intern,” and we all know what can happen to and by persons called interns. While a complaint process might be established to curb abuse and maintain some minimal level of competence of those who would train the young, the hassle of the bar doing so may be more than it is worth.
A second concern is that articling could result in a law firm not adequately training the candidate or simply passing along the incompetent to prey upon the public. It may be too much trouble to provide adequate training or to insure the less than competent do not become members of the legal profession. While the firm will likely not employ the unworthy candidate after the period of articling, some poor member of the public may well employ the candidate to their regret. On the other hand, the truly creative and independent candidate might find themselves at odds with the firm where they spend their year of servitude. Such a circumstance might deprive the public of a lawyer who will make a difference because the establishment does not often appreciate those who do make a difference.
Towards a more sane approach
The bar exam, in its current formulation, does little to determine whether the bar applicant is competent as an attorney. Instead, the bar exam fills the coffers of bar review course and unnecessarily inflicts emotional and financial distress on the applicants.
It is no answer to say that we have always done it this way (we haven’t) or that since we had to go through it, why shouldn’t the new applicants? Applicants shouldn’t be forced to endure the same pointless process as those endured by graduate students, pledges to fraternities, and new members of athletic teams.
Instead, the bar examination should fulfill some important purpose. Namely, it should determine which applicants are competent in the practice of law, and which are not. Given the unrealistic nature of the current examination, it cannot possibly fulfill that purpose. A performance exam without the useless essay and multiple choice portions of the bar exam would be a better, more efficient screening device. Failing that, an articling process might serve the same purpose, determining whether an applicant, after working in the “real world” for a while, is competent in the practice of law. If none of these approaches are appealing, then perhaps the bar exam should be banished from Texas for applicants hailing from Texas schools. We could presume that Texas applicants are competent and save the students thousands of dollars each in bar review courses. This would allow BarBri employees to find more useful work other than the taking of bar examinations and reduce the excessive levels of anxiety and monetary costs to applicants forced to watched videotaped lectures from professors both living and dead.
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