The pandemic acted as an unprecedented stress test on the rusty hull of the bar exam and shocking no one, it sprung some leaks. Few thought the bar exam made a lot of sense as a licensing mechanism before COVID, but most generally accepted it as a professional firmament that existed before us and would exist after us. Sure, it was a generalist exam for a long-specialized job. And, yes, cut scores across the country run the gamut from arbitrary to racist. But it’s just… something you’ve got to do!
It was the strain of the lockdown that encouraged everyone to seriously reevaluate how we license attorneys. Well, not everyone took it seriously. Some tried to dismiss the earnest academic inquiry into the lack of evidentiary support for the efficacy of an exam by insulting and threatening examinees; anyone who took the time to dig into the critiques found advocates for a number of thoughtful proposals — many aimed at fundamental legal education reform to improve schooling and render the bar exam unnecessary.
The New York State Bar Association task force looking into these issues put out its recommendations and, well, bless their hearts.
There’s a lot to like in here. The group actually listened to the academic experts that the National Conference of Bar Examiners branded as fake news. Inherent problems with traditional testing, like the criticism of basing a legal exam on multiple choice, are not immediately disregarded. It also recognizes that New York, as the gravity well of the American legal landscape, is uniquely positioned to take on a leadership role in breaking the NCBE’s stranglehold on attorney licensing. If long-term reform is going to happen, that path will run through New York or California.
But taking that opening, the task force largely trips up in its recommendations, ultimately forging a worst of all worlds solution.
It begins by cherry-picking from the recommendations made by Professor Deborah Merritt without grasping how they fit in a larger constellation of proposals. For instance, Professor Merritt recommends longer testing sessions on fewer issues to better simulate the actual practice of an attorney:
padding billables demonstrating the skills required to find the correct legal answer.
To this, the task force took a swing and missed:
We agree that 90-minute test sessions are too short; however, we are concerned that a three-hour test session devoted to a single performance test may be too long and that it may be appropriate to shorten each session to provide more questions that cover more subjects.
No! Fewer subjects was the whole point. Lawyering isn’t a generalist game, so it’s not about proving examinees can regurgitate material they’ll never see again. It’s about proving they can answer a complex legal question when presented. Nobody cares if some random commercial paper rule is thrown into the test.
While we support the idea of performance tests, we are concerned that if students perceive that, when they take the bar examination, they will be provided with a library file of New York materials, they will not study the New York material during law school.
You know how you could make sure this is studied? Eliminate the exam as is and force all applicants to take a graded course on local law. You could even contract it out to the existing bar prep faculties if you want. That’s a more direct solution than forcing applicants to answer legal questions while artificially cutting off their access to research — despite research skills being the whole point of lawyering.
BOLE’s presumption that persons transferring UBE scores out of New York are still intending to practice here, as well elsewhere, is unwarranted given BOLE’s acknowledgement that some people opt to take the test wherever they find it convenient to do so, regardless of whether they truly intend to practice in the testing jurisdiction.
This actually reads like a bad LSAT answer: “some people take bar exams in states they don’t want to practice in, therefore (b) no one applying to multiple bars actually plans to practice in New York.” It also makes a mess of the report’s underlying logic that New York is such an important legal market that it can and should act as a leader. Lawyers want to be able to practice in New York. Manhattan is the center of the legal universe! Is it shocking that someone hoping to practice in New Jersey is taking the NY exam? Not at all. California? Also… not at all. Eliminating portability is a cynical protectionism move at best and NY should be better than that.
There’s a lot of shade thrown on the idea that the UBE tests “the law of nowhere” but — and this is physically uncomfortable to type — the NCBE has a point on this one. For all the report’s allusions to the uniqueness of state law, it’s basically a decoder ring exercise. “Oh, this state renumbered that federal rule this way” or “The ABA Model Rules have dashes instead of decimals here.” Not that there aren’t nuances in the development of state law around these rules, but those nuances are not getting captured in an exam period where the examiners are hellbent on shoving 40 topics into 90 minutes. We’re not using the Napoleonic Code here, NY state law isn’t the unique and untranslatable snowflake they like to think it is.
But, at least someone’s trying to make a change. Not every alternative is going to be a winner. The Court of Appeals should reject this proposal, but also appreciate the good stuff in here. Much like legal practice, reforming the exam isn’t about getting an answer quickly, it’s about getting it right.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.