It's Time We Talk About Getting Rid Of The Bar Exam. And Here's Why.

from the naked-emperor dept

Thousands of law school graduates sat for the bar exam this week. It has long been questionable whether this semi-annual process of testing lawyers is in any way a valid method of determining whether a lawyer is qualified to practice. But the egregious way bar authorities have altered the administration of the test to respond to the pandemic has made it clear that the answer is no.

In theory, how lawyers become licensed to practice shouldn’t really be a technology topic. On the other hand, here at Techdirt we do talk about law, and sometimes that means we need to talk about the role lawyers play in our legal system so that law can be effectively and equitably administered in a way that protects liberty. And sometimes that means that we need to talk about how technology may interfere with that role.

We also regularly chronicle when awful lawyers do actually cause real harm, and we cheer when their bad behavior is finally checked. Lawyer licensure is one way that bad lawyers can be checked, and that’s why we need to care when the systems we use to license lawyers themselves need to be checked. Especially when, as now, those systems have deployed technology in a way that just further betrays any credible principle underpinning the licensing system.

Even before the pandemic the system was already straining credulity. While on paper it makes sense for bar admissions authorities to test the competency of new lawyers before admitting them to practice, it has been increasingly apparent that the actual exams being administering generally do no such thing, instead testing them on irrelevant knowledge that will be of little use to them in their jobs, and under circumstances that in no way align with those they are likely to experience as part of the actual practice of law. While there are occasional moments of potential utility, the bar exam, on the whole, has become little more than a formal system of hazing that newbie lawyers must endure before gaining entrance to the profession.

And the pandemic has only exacerbated all of those problems. As the coronavirus upended standard testing practices, it had the effect of pulling back the curtain to reveal the defects of the entire system as bar authorities responded to the moment by doubling-down on the worst of it. Because instead of using it as an opportunity to focus on what could potentially be worthwhile about the exam, bar authorities decided to make it an even more arbitrary and impossible obstacle for new lawyers to hurdle.

To sit for the exam, examinees in many states had no choice but to install insecure, invasive, and unstable remote proctoring software, Examsoft, on their own personal machines (and in some cases expend additional resources to even come up with a machine that would be eligible for the software) in order to lock them down so that they could be used for nothing but writing exam essay answers, and surveilling the test takers while they took the test in order to make sure they did nothing but.

The result of all this distrust by bar authorities that examinees might cheat on their tests was the complete sabotage of their performance on this test by said bar examiners, who had elected to employ this software despite its previous flaky performance.

Speaking of trust, it let examinees be deceived that everything would be fine, only to put them through needless stress when they found out it wasn’t.

And it put all these test takers through this hell for nothing.

Horror story after horror story after horror story accumulated during the days of the test as examinees, who in many cases were taking the most important and taxing test of their lives, found themselves with frozen machines, busy support lines, and constant reboots chewing up the finite time they had available to complete the test.

The upshot: for many, the ability to finally earn a living in their new career, despite the immense amount of time and money expended, will be derailed by this fiasco, as many a qualified lawyer will unjustly fail the test thanks to the software failing to work.

Such an outcome is inexcusable, unnecessary, and bad for the profession at large.

It’s bad for the profession because it has the effect of locking out scores of people who could actually be good lawyers. Even pre-pandemic, the bar exam had the effect of keeping out smart, capable people who simply don’t test well, or who could not afford the extra cost of exam preparation in terms of time or money. The reality is that few, if any, law students graduate from law school ready to sit for the bar exam. Nearly everyone does a separate bar exam course to prepare, which easily adds several thousand dollars to the cost of an already extremely expensive legal education. (Plus it also costs a lot of money to even sign up to take the test in the first place, let alone take the time off to study for it. Google “bar loan” for what a good chunk of law grads need to take out in order to finance the endeavor.) The profession already suffers from a lack of diversity by driving away those who can’t afford the enormous cost of pursuing it. Having additional arbitrary hurdles connected with the test only worsens that lack of diversity, and adding even more, through imposing these insidious remote proctoring requirements, will only exclude even more qualified people, and for no good reason.

Because these proctoring requirements are also unnecessary. Treating examinees like presumptive cheaters, especially at the expense of testing their actual competence, does the profession and public a huge disservice. The reality is that the practice of law in the United States is not a memorization game. In fact, relying solely on memory is likely to be malpractice ? good lawyering almost always requires looking things up to be sure. The trick is to have enough familiarity with the law to be able to spot the issues that arise and know how to efficiently look up the specific law that applies to them, which are the skills the exam should be testing for. And that means that a timed, open-book test would do a vastly better job meaningfully assessing law graduates on their readiness to be lawyers than this bizarrely patronizing and punitive system currently does.

And it’s inexcusable that this is the current state of affairs. It is bad enough that even in normal times bar authorities so heavily policed test takers that they forbade menstruating women from having sanitary supplies available (or forced them to show them off publicly). But the pandemic protocols have completely forsaken any claim on the bar exam being anything close to a socially valuable exercise. Instead these protocols have revealed it to be little more than an arbitrary exercise of power by bar authorities, who seem to be utterly confused about why we have bar authorities in the first place.

The job of bar authorities is to help shore up the administration of justice, not directly undermine it with pointless displays of authority over people’s lives and livelihoods. The ghastly irony here is that the very same stakes that have driven bar authorities to automatically suspect every bar candidate of cheating and to impose these onerous remote proctoring rules are the very same stakes that they have shown themselves to be completely indifferent to by imposing these with these very same onerous remote proctoring rules, with potentially devastating and undeserved results to perfectly capable bar candidates’ futures. In the wake of these misplaced priorities it is impossible to believe that these same authorities can be qualified custodians for anyone’s interests, including the public’s. And by so abdicating their legitimacy as stewards of the profession they make it impossible to credibly act as such, no matter how much the public, or the profession, might need them to.

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Comments on “It's Time We Talk About Getting Rid Of The Bar Exam. And Here's Why.”

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Anonymous Coward says:

bar exam test

i took one of those online example tests for shits and giggles. it was only about 1/4 of what the real test would be. with zero law school classes, no pretest studying, just out of the blue take it and see what kind of score i would get. while some of the questions are confusing and i got most of the hearsay questions wrong. i still managed to pass the test with a low passing score. it does help to know something about the law before you start and i did well for an untrained non-lawyer.
once you figure out how to lookup the laws for where ever (location) and what that law is. it makes it easy to form a proper defense/ offence. the rest is just courtroom procedures and filing paperwork.

Koby (profile) says:

Re: bar exam test

I took an online course a few months back. It was open book, open notes, but it was a timed test. Our class instructor said upfront at the beginning of the course that there was certainly a lot of knowledge on the subject, and it would be difficult to memorize everything. Far better than temporarily memorizing a ton of facts and then forgetting them within 6 months, is HOW to look up stuff and then apply it to a complex question to arrive at an answer within a reasonable amount of time.

Of course, I guess it would have been possible for me to just hire a ringer to sit-in for me. There’s probably never going to be a way to eliminate all cheating. But it still seems like a better alternative installing malware on your device in order to sit for an exam.

PaulT (profile) says:

Re: Re: bar exam test

"open book, open notes"

That means that the test you took was intended to test you on your ability to use available documentation, not your ability to recall certain facts. Which is great, that type of testing won’t work everywhere. Sometimes you really do just want to test that the subject has gathered a basic understanding of the subject, and you can’t do that if they can just copy a description from another source.

Cathy Gellis (profile) says:

Re: Re: Re: bar exam test

No. You still have to issue-spot and know where to look for the rules, which won’t work out well with a ticking clock if you don’t have enough of a mastery of the subject to quickly know where to look. And you also still need to be able to write a cogent analysis, which open notes won’t help you with there either.

This comment has been deemed insightful by the community.
Anonymous Coward says:

good lawyering almost always requires looking things up to be sure.

The resistance to open-book tests, in most any field, has always struck me as lazy. When you think of a lawyer’s office, what do you imagine? For me, I expect to see a bunch of law books and even other laywers, paralegals, etc. that can help out. If they can get me a useful answer in an hour or two, doesn’t matter how they did it.

Same thing for a doctor, right? There are always books around, and I’m not going to hold it against a person if they open a few, or consult with another doctor, or refer me to a specialist. Electricians are pretty much expected to own a copy of the electrical code. Engineers and scientists talk amongst themselves all the time.

But if you’re running a class of 100 law students and have to evaluate each one for "would they be a useful addition to a law office?", well, now you’ll have to get to know 100 people. It seems fair, given the amount they pay to be there. Not as easy, though, as coming up with 100 rote-knowledge multiple-choice questions out of a textbook, and feeding 100 papers into a grading machine.

Gatekeeping is another rant on its own. You know some places require a diploma just to give a haircut? Unless it’s done with a straightrazor, or one is also applying potentially dangerous chemicals like peroxides, that’s pretty ridiculous.

TaboToka (profile) says:

Re: Re:

these kinds of tests aren’t designed to test your knowledge or abilities at all, they are designed for maximum revenue.

Yes, and not in the way you think!

IANAL, but my profession does the same exact thing: guarantee a limited supply of practitioners. The stupid thinking goes that if we allow every Tom, Dick and Henrietta in, then there will be too many of us, and that sweet, sweet contracting cash will go down as supply goes up.

The downside is
a) the rent is just too damn high
b) the next breakthrough in the field might not happen because the gatekeepers filtered out the one person who could’ve done it today
c) debt and misery
d) ???
e) Profit!

Anonymous Coward says:

Well, Ms Gellis.

You make an excellent case for reworking how remote proctoring is done. You even make a good case for changing the bar exam itself.

It is misfortunate, then, that the title of the essay invokes getting rid of the bar exam entirely as that seems only weakly argued, and doesn’t really appear to be the focus of your essay at all. And unfortunately, I don’t have enough personal experience with the bar exam and how good (or whether) it acts as an indicator of basic competency, to opine on whether or how the bar exam might be changed (or eliminated).

But remote proctoring the bar exam seems to have done no better than any other remote proctoring: security concerns, false accusations of cheating, true accusations of cheating, ability of the user’s computer to run the proctoring software at all. Horror stories about all of these are easily found online, and certainly not limited to the bar exam. Proctorio, ProctorU, even Dartmouth’s Canvas have all appeared here in the past.

And for something completely unrelated to the bar exam: I would be interested in your take on the case recently concluded regarding the Texas Bar Association, mandatory dues, and political advocacy, but I’m not sure how it would make it to these pages.

Abe says:

Re: why an extra academic exam ?

Well, stepping back and taking a fresh look at the ritual Bar Exam seems a very good idea.

Why is a J.D from a state certified law school inadequate for basic entry into that state’s Bar ?

Either individual state governments do not trust their official law school certifications … or the state is imposing extra unnecessary requirements on the practice of law.

What critical value-added component does the Bar Exam provide — that is not/cannot be already supplied by a certified law school ??

This also logically leads to broader and important issues of Occupational Licensing itself.

Anonymous Coward says:

My familiarity with the subject is mostly colored by my last year on Twitter and listening to a good portion of LawTwitter be advocated toward the view that the Bar Exam does nothing they thought it did. I was a little surprised that this piece didn’t even mention in passing that after all the issues with the last 2 exams during the pandemic, the Bar Exam officials in several places messed up scoring and erroneously said some people passed or didn’t pass — which is just a travesty in such a high-stakes test.

Also, if people want to see someone make some good arguments for abolishing the bar exam — see @LizCGil on Twitter. She’s a strong advocate that brings case and argument for why this thing is awful.

Anonymous Coward says:

Re: Re: Re: Re:

I don’t agree with sumgai, but "attorney" and "lawyer" are not true synonyms. "Attorney" refers to a person who has the authority to represent the interests of another, as in "power of attorney". Lawyer generally refers to a person who practices law; when representing a client they would indeed be an "attorney" (though many attorneys are not lawyers).

Bill Silverstein (profile) says:

The bar exam.

I had a friend take in in person test, years ago, and her computer froze. The ‘technicians’ were even worse than the Geek Squad.

However, studying for the exam and taking the exam does cover some material not covered in the law school classes. The MBE covers a large area of law and are designed to trick you on some of the subtle exceptions. The essay questions actual make you identify the issues, know the rules, and apply reasoning to the rules. They also have a practice test where you are provided a closed library so you don’t have to memorize all of the rules for it.

That Anonymous Coward (profile) says:

Huh, I wonder if students can sue the various bars who still use this crap.

IIRC there were multiple test takers who discovered that the testing package left their machines open to hackers who helped themselves to all sorts of PII.
The warnings were so strong there were those taking the test who bought a brand new computer to take the test knowing they would wipe it at the end & never use if themselves because it cost to much to certify it would ever be safe to use.

Given the number of lawyer who represented Trump & his claims across the nation perhaps one should ask if the Bar has become worthless, they do not deter the unfit & only take action to reign them in well after the barns burned down & been rebuilt 3 times.

Paul Keating says:

Absolute bunk

I completely disagree with this drivel of a comment. It does nothing but complain. I am an attorney and took the bar. I found that it challenged me to be familiar with the subjects I would likely encounter. The test was grueling – 8 hours/day for 3 days. Finger print and facial recognition proof required to enter and on demand. Any equipment used had to have no memory capacity. I sat with some 9,000 others in a huge hall. A number we’re forced to leave for apparent cheating.

They did the best they could during the pandemic. You did not have to take the exam when and as you did. You could have gone to any state you qualified for. You could have delayed. Stop complaining so much and get on with it.

Abe says:

Re: Absolute bunk

… so you attended an inferior law school that did NOT ‘familiarize you with the subjects you would likely encounter’.

Must be many lawyers who were cheated like this by law schools — and needed remedial legal education via state Bar Exams.

Also seems an excellent idea then to ensure all lawyers maintain professional currency by requiring the Bar Exam every 5 years for state licensing renewal.

Anonymous Coward says:

Re: Re: Absolute bunk

Also seems an excellent idea then to ensure all lawyers maintain professional currency by requiring the Bar Exam every 5 years for state licensing renewal.

Funny how every adult who fervently defends putting children through harsh examinations suddenly lose all enthusiasm when it’s suggested that they sit through the same tests to brush up on their knowledge.

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