Timing of the bar exam – a billion dollar issue in the COVID-19 crisis and beyond

By D. Benjamin Barros

Author’s note: This op-ed was drafted about six weeks ago, in a very different world.  It was intended to highlight the costs that the timing of the bar exam impose on law school graduates, and to make the case for long-term change in how the bar exam is delivered. 

Now, in the midst of the COVID-19 crisis, New York and Massachusetts have just announced that they are postponing the July exam. Other jurisdictions are considering following suit.  From our current vantage point, it seems to me that holding a traditional bar exam in July will be impossible.

 It is far from clear it will be possible to hold a traditional bar exam in September, or even in February of next year.  We are being forced to consider alternatives to the traditional bar exam that were unimaginable before the crisis.  A month ago, it was impossible to imagine that every law school in the nation could move to teaching all of its courses on-line in a two-week period, but that actually happened.  The same degree of rapid radical change may need to happen in the coming months with the bar exam.

I have kept the main structure of the op-ed the way it was drafted before the crisis, and added an afterward that discusses how the costs imposed by bar exam timing should impact our thinking about how to handle bar licensure during the COVID-19 epidemic.  

Lawyers and legal educators love to complain about the bar exam, but the exam itself never seems to change that much.  Sure, we have a rapidly-accelerating trend towards widespread adoption of the Uniform Bar Exam, and most bar exams now have a performance test component.  The UBE, though, really isn’t very different from the bar exam that lawyers took forty years ago. Candidates continue to take a comprehensive closed-book exam that tests wide range of subject-matter topics after they earn their JDs.  Proposals for reform come and go, but the exam itself largely stays the same.

There is some reason to think that the next few years might be different, and that some progress might be made in modernizing and reforming the bar exam.  The National Conference of Bar Examiners has charged its Testing Task Force with engaging in a comprehensive and future-focused study of the bar exam that is intended to be unconstrained by the current structure of the exam.  The Task Force is entering the final phase of its study, and its report will be a rare opportunity to propose bar-exam reforms that have some chance of actually being implemented.

One of the topics being considered by the Task Force is the timing of the bar exam. Timing is a crucially-important issue that is often overlooked.  In our current structure, the vast majority of law students take the bar exam after they graduate from law school.  A student who graduates in May typically will take the July bar exam and will get results in October  A handful of states do allow candidates to take the exam after five semesters.  Even in these jurisdictions, however, most students take the exam post-graduation.

The current timing of the bar exam is unfortunate because it costs law graduates at least hundreds of millions of dollars per year in lost earnings. The multi-year loss of income to law graduates is in the billions of dollars. 

To see why this is so, imagine that law graduates could be employed as practicing lawyers immediately upon receiving their JD degree. Now consider our current system. Graduates need to spend at least two months studying for the bar exam.  Results typically do not come out until October.  Many employers (especially small firms and government agencies) will not hire people until they have passed the bar exam, so many law graduates will be unemployed or underemployed for several months after that.  If we conservatively assume 34,000 law graduates per year, a 75% first-time pass rate, three months of lost income per graduate, and an average salary of $50,000, we come up with over $300,000,000 in lost income per year.

My point here is not to pin down the exact cost of the current bar exam timing for law graduates. Rather, my point is to show that the opportunity costs of our current system of bar exam timing are substantial, and that bar exam regulators should take the lost income to law graduates caused by the timing of the bar exam seriously. Moving to a system where law graduates who passed a pre-graduation version of the bar exam could practice immediately on graduation would avoid hundreds of millions of dollars a year in lost income.

There are various alternative approaches, each with its own pros and cons, to the current timing of the bar exam. I and others have previously argued for moving the bar exam to after the second year of law school.  Some states, as I noted above, allow students to sit for the bar exam after five semesters.  Both of these approaches contemplate using the bar exam in roughly its current format. Other alternatives imagine broader changes to the exam itself.

Rather than one comprehensive exam, for example, the bar exam might be re-structured into a series of subject-specific tests that could be taken while students are still in law school. There could be a real advantage to having students take, say, the evidence portion of the bar exam soon after they take their evidence course in law school, when the material is still fresh in their minds. If the exams, whether comprehensive or subject-specific, were offered while students were still in school, law schools could offer a wide range of courses and support programs to help students who failed the first time pass on their second attempt.

Test timing is in the Task Force’s purview. Based on its report on phase one of its process, the Task Force is considering a “step testing” approach to the bar exam, where different components of the exam are given at different times. One approach that appears to be under consideration would be to use the Multistate Bar Exam to test substantive knowledge while students are in law school, and an enhanced performance exam to test legal skills post-graduation. 

I can see a number of advantages and disadvantages to this approach, and I can think of a number of alternatives that might be better. For example, I personally think that a better approach would be to have a series of subject matter tests rather than a comprehensive subject matter exam, and to have the subject-matter testing include essays as well as multiple choice.  My largest objection, however, is that the proposed approach still contemplates having a post-graduate component of the exam. I see no reason why skills testing could not be done pre-graduation, especially because skills testing wouldn’t require the study time needed for a comprehensive substantive law exam.

These objections aside, it is encouraging that the Task Force is considering recommending changes to the format and timing of the bar exam.  Any new approach will have pros and cons. We should not, however, ignore or underestimate the serious problems that result from the current bar examination system. The opportunity cost that results from post-graduate testing is one of those problems. If we are going to make changes to the format and timing of the bar exam, we should try to do so in a way that allows the testing to be completed while applicants are in law school.  Enabling students who have passed the exam to practice immediately on graduation will, over time, save billions of dollars in lost law graduate earnings.

Afterward: 

Six weeks ago, the timing of the bar exam was an important, but still somewhat abstract, issue. Now, every jurisdiction in the United States is being forced to consider this issue in the context of the largest public health crisis of our lifetimes. The short-term issues being considered now are different from the long-term issues that I addressed in the original version of the op-ed.  The core point, however, remains the same. Jurisdictions should consider the massive opportunity costs imposed on candidates by a delay in the bar exam.

In just the last few days, New York and Massachusetts have announced that they will not hold bar exams in July. Both contemplate holding the exam later in the fall. These decisions are understandable from a public health perspective.  Even a delay of a few months, however, will be devastating for test takers.  If every jurisdiction merely delayed the bar exam by three months, bar candidates nationwide would lose hundreds of millions of dollars in lost income.  Taking these opportunity costs seriously should lead jurisdictions to take a very hard look at alternatives that make them uncomfortable. The COVID-19 crisis has put us in a position where every alternative has major downsides.  We need to look for the least-bad alternative. 

A group of legal academics and other experts has put together a thoughtful list of options.[1]  None are perfect.  From an opportunity cost perspective, postponement, standing alone, is unacceptable.  Other alternatives fall into two broad categories.  The first is to find a way for recent graduates to be employed and to practice, at least temporarily, without having taken the bar exam, by giving graduates some kind of diploma privilege or allowing them to practice under supervision of a licensed attorney. 

The second is to give the July bar exam online, using remote proctoring technology. This alternative would be challenging. Remote proctoring technology has developed further than most people realize, though it may not yet in the state we would want it in an ideal world.  The Law School Admissions Council is developing a remote version of the LSAT that will be available this Spring, and is surely moving faster in this direction than they would have if not for the COVID-19 crisis.  Even if the remote proctoring technology is at an acceptable level, it would take a tremendous effort to develop the systems needed to offer the bar in an on-line format. 

LSAC is able to move to a remote-proctored LSAT in part because they have been offering the LSAT in a digital format since last year.  Offering an exam in a new format also raises important test validity issues.  Despite all of these concerns and hurdles, remote proctoring might be our best option, if not for July then for a slightly postponed exam offered in the Fall.  It is not obvious that public health concerns will be materially different in September or October than they will be in July. None of our options are perfect right now.  The COVID-19 crisis has forced all of us to very quickly adjust to using new and unfamiliar technology.  The bar exam may prove to be one more context where that is so.

Jurisdictions are facing an incredibly difficult challenge in deciding what to do about the bar exam during the COVID-19 crisis. As jurisdictions make the hard choice between imperfect options, I encourage them to consider the very real costs of those decisions.  We are in both a public health crisis and an economic crisis. Under the circumstances, jurisdictions should do all they can to avoid imposing hundreds of millions of dollars in lost income on recent law school graduates.