A Better Bar: Why and How the Existing Bar Exam Should Change

• Publication year: 2021

81 Nebraska L. Rev. 363. A Better Bar: Why and How the Existing Bar Exam Should Change

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Andrea A. Curcio(fn*)

A Better Bar: Why and How the Existing Bar Exam Should Change

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 364
II. Shortcomings of the Existing Bar Exam . . . . . . . . . . . 369
A. The Pretense That the Exam Protects the Public
from Incompetent Lawyers . . . . . . . . . . . . . . . . 369
B. Overview of the Bar Exam . . . . . . . . . . . . . . . . 372
C. Critiques of the Existing Bar Exam . . . . . . . . . . . 373
1. Problems with the MBE . . . . . . . . . . . . . . . . 373
2. Problems with the Essay Questions . . . . . . . . . . 376
3. Problems with the Multi-State Performance
Test . . . . . . . . . . . . . . . . . . . . . . . . . 378
4. Problems with the MPRE and Moral Fitness
Screening . . . . . . . . . . . . . . . . . . . . . . 380
5. Problems with the Weight Given to the MBE. . . . . . . 380
6. Failure to Screen for Issues Giving Rise to the
Public's Complaints . . . . . . . . . . . . . . . . . 383
7. The Exam Hinders the Ability to Create a More
Diverse Bench and Bar . . . . . . . . . . . . . . . . 386
III. Alternative Methods to Measure Bar Applicants'
Competence . . . . . . . . . . . . . . . . . . . . . . . . 393

A. The First Step: Defining Competence . . . . . . . . . . . 393
B. Computer-Based Testing: An Examination of Other
Professions and How the Legal Profession Can
Adopt What They Do . . . . . . . . . . . . . . . . . . . 394

C. The Canadian Model. . . . . . . . . . . . . . . . . . . . 398
D. The Apprentice Model . . . . . . . . . . . . . . . . . . 401
E. A Postgraduate, Pre-Admission, Graded Skills-
Assessment Course . . . . . . . . . . . . . . . . . . . . 407

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F. The Public Service Alternative to the Bar Exam. . . . . . 410
G. The Diploma Privilege . . . . . . . . . . . . . . . . . . 410
H. Modifications to the Existing Process . . . . . . . . . . 411
1. Testing Legal Research and Drafting . . . . . . . . . 411
2. Credit for Pro Bono Work . . . . . . . . . . . . . . . 412
3. Assessing Oral Communication Skills . . . . . . . . . 414
I. Beginning the Process of Change . . . . . . . . . . . . . 415
IV. Barriers to Revising the Entrance Requirements. . . . . . . . 416
A. The Existing Bench and Bar . . . . . . . . . . . . . . . . 416
B. The Administering Bodies . . . . . . . . . . . . . . . . . 417
1. Cost and Practicality Concerns . . . . . . . . . . . . 418
2. Validity and Reliability Concerns . . . . . . . . . . 418
C. Law Schools . . . . . . . . . . . . . . . . . . . . . . . 420
D. Bar Applicants . . . . . . . . . . . . . . . . . . . . . . 422
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 422

I. INTRODUCTION

Despite the fact that competent lawyers should possess a wide range of knowledge, skills, and qualities(fn1) and the fact that different kinds of lawyers need different strengths,(fn2) the entire process used to select lawyers-from the Law School Admission Test (LSAT), through law school, and up to the bar exam-overemphasizes some skills and completely disregards others. Those most likely to become lawyers are those equipped to take timed tests that emphasize the ability to analyze and apply legal rules. Although these abilities are important, they certainly are not the only ones competent lawyers need. In fact, a blue-ribbon commission of lawyers, judges, and law professors conducted an in-depth study and concluded that competent lawyers must also be able to do legal research, conduct factual investigations, problem solve, communicate effectively, counsel clients, negotiate, organize and manage legal work, recognize and resolve ethical dilemmas,

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and, in some instances, litigate and effectively use alternative dispute resolution procedures.(fn3) Most of these skills, however, are not tested on the bar exam, are only cursorily assessed during law school, and are not factored into the law school admissions process. Further, qualities like a demonstrated commitment to promote social justice, a sense of fairness and morality, and the willingness to perform public service activities,(fn4) although given lip service,(fn5) are not accounted for in any meaningful way in the process of deciding who may get a law license.(fn6)

This Essay focuses on the bar exam, the final step in the process of deciding who may practice law.(fn7) Currently, the exam is over-inclusive, allowing those with a very narrow range of skills to obtain a law license. It is also under-inclusive. By testing a very narrow range of skills in a way that is unrelated to the practice of law8 and via a methodology that is weighted in favor of those from middle- and high-socioeconomic backgrounds,(fn9) the existing bar exam delays or excludes people from the practice who may be competent lawyers and who may be the lawyers most likely to do pro bono work and serve underrepresented communities.(fn10) This Essay explores ways to modify existing bar examination requirements to account for the wide variety of skills, knowledge, and qualities competent lawyers should possess,

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keeping in mind that all lawyers need not possess exactly the same proficiencies. This Essay suggests that the concept of a competent lawyer should be defined broadly in order to account for a wide variety of qualities and skills, perhaps even including an applicant's commitment to perform public service and serve underrepresented legal communities.(fn11)

When considering changing the entire process for selecting lawyers, numerous reasons exist for beginning with the current bar exam. First, unlike law schools, the bar exam's main purpose is to protect the public from incompetent new lawyers.(fn12) It is wrong to represent to the public that bar licensing requirements(fn13) ensure minimal competence when, in fact, these requirements screen for only a narrow range of skills that competent lawyers should possess. Second, the pretense that the existing exam actually screens for competence means that the response to the real and perceived problems of licensing incompetent lawyers is to raise the passing score on the bar exam(fn14) rather than to examine and address the public's actual concerns(fn15) and the underlying causes of lawyer incompetence. Third, changing the bar exam may have a trickledown effect. For many law students, the bar exam is a

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driving force in curriculum choices.(fn16) If the bar exam measures a wider breadth of skills and qualities, law students and some faculty are likely to push for changes within law schools that mirror the new exam requirements. This, in turn, may change some of the types of courses offered and the skills and qualities assessed in law school classes.

If law schools modify how they measure student achievement, then the LSAT, which purports to predict law school success for at least first-year law students,(fn17) must also change or risk becoming less of a cornerstone in the law school admissions process. Finally, the current bar exam disproportionately delays or excludes people of color from the practice of law.(fn18) If the exam does not actually measure minimum competence to practice law, and yet bar examiners continue promulgating this test, the profession perpetuates a system in which eradicating racial bias in our courts is a spoken panacea rather than a real commitment.(fn19)

Many will argue that changing the bar exam to reflect a broader picture of competent lawyers is unrealistic. They will contend that attributes like a commitment to social justice, a willingness to perform public service activities, and the likelihood of one's serving underserved segments of the population cannot be measured. They will argue that the ability to conduct factual investigations, do legal

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research, and orally communicate and negotiate are skills that either cannot be reliably measured or to do so would be prohibitively expensive. This Essay discusses why those arguments are unpersuasive and how many of the skills and qualities that currently play no role in the licensing process can, in fact, be assessed.

The foremost hurdle to implementing the changes suggested in this Essay is that a substantial amount of time, effort, and money will be required to change the existing system. Inertia is a powerful force, and it is easy to simply sit back and accept the status quo. People must be motivated to change. This Essay discusses the reasons the bench, bar, and legal academy should accept the challenge to examine and modify the bar examination process.

Part II of this Essay begins with a discussion of the recent move by many states to increase bar exam passing scores in order to more effectively screen out incompetent lawyers. It discusses why raising the passing score on the existing bar exam makes no sense unless and until states look at the skills, knowledge, and qualities that competent lawyers should possess. It argues that if states honestly assess what it takes to be a minimally competent lawyer, they will conclude that their licensing processes account for only a very narrow range of skills. It then discusses why, even if states are willing to test for only a few of the skills competent lawyers should possess, the existing exam inadequately measures those skills. It also discusses other problems with the existing exam, such as its complete failure to address the kinds of issues giving rise to the bulk of bar disciplinary complaints, malpractice lawsuits, and negative public perceptions of lawyers. Part II also discusses how the existing bar exam hinders the development of a more diverse bench and bar.

Part III examines numerous ways of measuring various competencies that are not now accounted for. It looks at some of the methods used in other professions' licensing processes. It discusses using...