The Bar Exam is BS

The Bar Exam is BS

Let’s talk about the bar exam. The bar exam is, ostensibly, a means of testing “minimum competence” to ensure that new law graduates are sufficiently not-terrible enough to practice law. But it is complete and total nonsense, from the start. I’m not even going to address the specific issues with administering a bar exam with thousands of applicants in a single room during a global pandemic. Instead, I’m going to convince you that the bar exam is entirely useless in its current form.

See, originally, there was no bar exam for new lawyers. Graduates from law school were granted the privilege of practicing by virtue of their diploma. A few states – namely Wisconsin – still do things this way for graduates of a Wisconsin state law school. But that all changed as African-Americans began to attend law schools in the 40s and 50s. At that time, pearl-clutching bar associations were terrified at the prospect of treating all people equally. So they created the bar exam specifically as a barrier to entry for newly minted Black lawyers. Incorrigible.

Sketch of Charlotte E. Ray, the first black woman attorney, 1872. She had to close her practice after a few short years due to a lack of clients and became a schoolteacher.

This process of exclusion has not stopped. It seems at every opportunity the law school racket finds new ways to make joining the least-diverse-white-collar-profession even more difficult for those who come from disadvantaged backgrounds. Just look at these costs:

LSAT – required for admission to most law schools: Almost $300 in fees and report generation.
MPRE – an ethics test required for licensure in most jurisdictions: $125.
Prep Course (because you need one to have any hope of passing): $1300-$3000
Bar Exam: $505
Laptop fee: $125
Character and Fitness: $300
Post-bar admission fees: $580.

Not to mention the 3 months of not working to study for the bar. And 3 months of not working while waiting for bar results. Is it any wonder why its so hard for the economically disadvantaged to become lawyers?

And what does the bar exam do? Well, in the vast majority of the country, States administer the exact same bar exam. Its called the “uniform bar examination” and it exclusively tests general (read: outdated, overruled, abrogated, or otherwise inapplicable) law. It doesn’t test state-specific law, just the generalities. So, you spend 3 months learning law that is absolutely and totally inapplicable to what you’ll do after licensure.

It tests upwards of 13 different subjects – each of which has a near-infinite number of rules and sub-rules and exceptions to the exceptions to the exceptions.

It is entirely closed book. So, it takes most applicants about 3 months of dedicated studying with a professional test prep course to gain a working knowledge of all the fake law you need to pass the bar.

But what does legal practice look like? Well, for the vast majority of lawyers it involves researching and writing. Lawyers don’t have the law memorized by heart – and even when we do, we still go and verify that its still the law because stuff changes constantly.

So, the bar exam does not approximate legal practice at all and for the vast majority of lawyers does not actually test the law they will be practicing.

Okay, need more evidence that the bar exam is useless? The National Conference of Bar Examiners is the organization that administers the UBE. The NCBE’s president has never taken the bar exam – she was licensed through diploma privilege. The NCBE’s general counsel has never taken the bar exam – they were licensed through diploma privilege. Rules for thee but not for me seems to be the sentiment at the NCBE. (Yet, ironically, the NCBE President is releasing a forthcoming blog post about why diploma privilege is a terrible idea that will ruin the legal profession).

The bar exam originated as a racist endeavor to keep the legal profession white. It continues as a literal cash-cow that makes bar associations and the NCBE yacht-loads of money off the backs of the people who can least afford it. And it does absolutely nothing to protect the public from shitty lawyers. The bar exam is a test of your ability to memorize. Memorizing the law, however, is not what lawyers do. Lawyers read the law, digest it, synthesize it, and apply it. We don’t memorize it.

Not saying it’s a racket, but you could play tennis with it.

This brings us to the second part of the problem: The American Bar Association. The ABA accredits law schools. Literally almost any law school. Arizona Summit Law School (where I did my first year of law school before transferring to a real school) was accredited even though less than 30% of its graduates passed the bar. Charlotte School of Law? Same deal. Cooley. Thomas Jefferson. Honestly, there are more bad law schools than good ones and a great deal of them are “accredited” by the ABA.

In a perfect world, ABA accreditation would a) mean something and b) be sufficient evidence of competency for a graduate of an ABA-accredited school. But an ABA accreditation is functionally useless (unless your school somehow doesn’t have it) because my dog could start a law school and very possibly get it accredited. It is almost no measure of quality.

Yet, this brings us to the third part of the problem: shitty lawyers still exist. Even with ABA accreditation and a bar exam testing “minimum competency” at your ability to memorize outdated and inapplicable law, there are still absolutely terrible lawyers out there.

What is the solution? Well, honestly, it’s simple. One Midwest jurisdiction already happened upon the proper solution in response to the simple reality that you can’t hold an in-person bar examination safely during a global pandemic. They still administer a bar exam but it is a narrowly tailored, open-book examination of state law. This is a COVID-19 accommodation but it truly reveals the unnecessary nature of the bar exam as currently constituted.

Per the second paragraph of the attached memorandum we have already established that there is a precedent for you shutting the hell up, Todd.

But still, that’s crazy, right? An examination that actually tests a lawyer’s ability to research and write. That’s perfect. It can be taken from home, online. It can be ran through the same integrity/plagiarism software every online class uses to make sure its students aren’t cheating. And it actually tests the skills a lawyer will use every day.

I’m sure there will be lawyers reading this and getting red in the face. That’s fine but I implore those reading to ask themselves: is the bar exam necessary or are you just upset you had to do it and want to make everyone else do it, too?

We can do better. We shouldn’t be clinging to the past because we have “always done things that way”. (Also, we haven’t always done them that way). Innovation is never-ending and the bar exam demonstrably is in need of innovation. The bar exam is an outmoded hazing ritual with racist origins that exists solely to extract cash from those least in a position to afford it. It is time to reform it into something functional and worthwhile.

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Derek Debus is a trial lawyer in Arizona and a graduate of the Sandra Day O'Connor College of Law where he earned recognition as a Willard Pedrick Honors Scholar and received the designation of Trial Advocacy Fellow. Prior to attending law school, Derek served in the United States Marine Corps as an infantryman and combat instructor and worked to train law enforcement as a professional firearms instructor. Derek also serves on the Board of Directors for the nonprofit organization Academe Grove -- a 501(c)(3) nonprofit focused on providing training and resources to education institutions and first responders. Follow him on twitter @derek_debus.