Has the bar exam outlived its usefulness? Is it time to scrap the grueling two-day endurance test?
Should graduation from an approved law school – perhaps in conjunction with an apprenticeship requirement – be enough?
A rising tide of bar leaders and legal educators – including a former North Carolina Supreme Court Justice – say yes to all those questions.
More and more states are scrutinizing how lawyers become lawyers. A main area of focus is the bar exam, which some describe as unfair, outdated and discriminatory.
In North Carolina, alarm bells went off after nearly 70 percent of the 315 NC law school graduates who took the February 2018 bar exam failed.
“Absorb those numbers,” writes former state Supreme Court Justice Bob Orr in this guest editorial in the Charlotte Observer. “Two out of every three graduates of accredited law schools in this state, having invested huge amounts of time and money in their quest to become licensed attorneys, were deemed ‘unqualified’ as a result of a two-day exam.”
Less than 10 percent of those who graduated from now-defunct Charlotte School of Law passed. Most of the state’s other law schools had dismal showings as well.
This follows a nationwide trend of plummeting pass rates, according to data from the National Conference of Bar Examiners. In 2011, nearly 70 percent of the 78,900 people who took state bar exams across the nation passed. That rate plunged to 58 percent in 2016.
“For those rejected it is a devastating blow — personally, professionally and financially,” writes Orr. “The use of a two-day test as the gateway hurdle for admission to the practice of law is outmoded and unfair.”
A Final Hazing?
The use of bar examinations as a condition for a law license dates back to the early 20th century. Today, every state except Wisconsin has an exam requirement. In Wisconsin, students who graduate from one of the state’s two law schools (Marquette or the University of Wisconsin) can be admitted to the state bar without taking an exam.
Other states have considered dropping the bar exam, but none have actually done so. Iowa recently came close. One proponent of abolition was the president of the Iowa State Bar Association, who called the test “nothing more than a final hazing that tests students on esoteric material they will probably never use.” But even though a blue-ribbon commission unanimously recommended moving to a “diploma privilege” system like Wisconsin, the Iowa exam survived.
Unfair and Discriminatory?
Other critics – like legal author and educator Allen Mendenhall – slamsthe bar exam as a “mechanism for excluding the lower classes from participation in the legal services market.”
Mendenhall says the test has been used historically to bar entry to the profession and limit market competition.
“The bar exam tests the ability to take tests, not the ability to practice law,” he writes in Newsweek. “The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.”
Others blame law schools for plunging pass rates, saying that since 2008 schools have been admitting unqualified candidates. But former Supreme Court Justice Orr disputes that claim.
“I’ve taught for almost 30 years as an adjunct professor at three area law schools, including the last 15 years at UNC School of Law,” he writes. “As a judge I interviewed countless students for job opportunities as research assistants for the court. I’m telling you, the law students of today are smarter, more disciplined and more talented than many who have gone before, including yours truly.
“Three years of classroom lectures, exams, research papers, clinical experience and interaction with bright law professors, fellow students and members of the legal profession produces a comprehensive legal education. Graduates of our law schools — public, private or for-profit — are already intellectually qualified to become lawyers. They don’t need a one-shot exam to prove that. There doesn’t have to be a bar exam. It’s just that we’ve done it that way for years.”
What do you say? Should the bar exam be abolished? Tell us your thoughts.
- Charlotte Observer http://www.charlotteobserver.com/opinion/editorials/article209319874.html
- National Conference of Bar Examiners http://www.ncbex.org/
- Des Moines Register https://www.desmoinesregister.com/story/news/education/2017/11/07/2017-iowa-bar-examination-results/814428001/
- Pittsburgh Post-Gazette http://www.post-gazette.com/business/2014/01/26/Bar-exam-falling-out-of-favor/stories/201401260118
- Newsweek http://www.newsweek.com/bar-exam-unfair-and-undemocratic-322606
Jay Reeves practiced law in North Carolina and South Carolina. During the course of his 35- year career, he has been a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact firstname.lastname@example.org or 919-619-2441 to learn how Jay can help your practice.