The California Bar Exam Is The Tip Of The Lawyer Licensing Iceberg

Nicolas W. Allard:

Traditional bar exam and licensing practices have outlived their sell-by date. In their present state they are increasingly hard, if not impossible, to justify as serving the best interests of the profession or the public.

Dissatisfaction with “take it or leave it” business as usual by the bar testing industry is not a local phenomenon in just the Golden State. Although the particular circumstances are unique that are precipitating the still to be finalized California judicial intervention, it is likely a forerunner of other major tectonic shifts. This is because, if for no other reason, the progress in California signals that major changes are possible.

Legal educators, professionals, judges and regulators across the country increasingly are asking themselves after years and years of concerns, and when they gather together professionally they are seriously discussing, a simple powerful question: Can we do better?

The answer for a rapidly growing number of knowledgeable people is obvious. The bar exam is only offered twice a year although we live in an on demand 24/7/365 world. The exam is a “one time, all or nothing” ordeal rather than effectively testing knowledge and skills as they are acquired. In New York State, the courts have imposed many other requirements and paths for determining readiness for practice. Consequently, the ritual, burdensome testing covered in much of the traditional bar exam seems like an unnecessary, quaint but expensive redundancy. It also is fair to ask why it is necessary for graduates to pay the profitable cram course industry thousands of dollars to prepare for an exam when earning a JD already required them to undergo constant rigorous testing after studying exactly what the ABA, local bar associations, state courts and law faculties require a law student to learn.

Graduates even have to pay to use their own laptop to take the test — like in Lord Nelson’s old-time British Navy, the perversely cruel practice of forcing sailors to braid the Cat-O’-Nine-Tails used for their own lashing. The exorbitant fee charged to use your own laptop, which everyone needs to do, seems to bear even less relationship to the cost of the special security software licensing needed to take the exam than the high price of the crummy lunches bar takers or their school must pay for or go without in our state. Unlike tests in other professions, for law grads it takes waiting months, often without paychecks, to get bar exam results and longer still to go through the process of the character and fitness review of candidates and finally be admitted to practice. (Parenthetically, the LSAT is offered more often and results come out faster, but not as fast as results in other learned professions.) While it has been commonplace to blame bar exam failure rates on educators and the test takers themselves, there has been too little attention paid to the relevance, or lack thereof, of the bar exam to the increasingly strong practical education and training that today’s law students receive everywhere, as everyone agrees they should. Similarly, the need persists to credibly determine through objective, independent, well designed and verifiable studies whether or not there is a disparate impact of the exam on test takers based on their gender, economic background, race and other factors.