Bar exam blues

It’s a tough, tough test. Kamala Harris initially failed it. So did Hillary Clinton. So did Michelle Obama. So did John F. Kennedy Jr.  So did . . .

Well, the list is long.

The bar exam is the great equalizer. Even the mighty have succumbed to its challenges. 

But you know what took a bite out of it? The pandemic. In many states, the bar exam was canceled or postponed and/or held online, which was a first. A number of graduates and legal experts took shots at it, wondering if the two-day test, which must be passed in order to practice law, was even relevant anymore, particularly during a pandemic.  

The questions: How will it rebound? And in what form?

Already, the February test is facing challenges. A number of states, including New York and California, have announced the winter bar exam will be held online instead of in person. 

That’s no shock given the current rise in COVID-19 cases. And there’s no guarantee that the July test will be a return to normal either.  

It’s not as if the bar exam didn’t have critics before the pandemic. For years, some have argued that its usefulness is doubtful.

Others have gone further. Jessica Williams, senior diversity editor for the California Law Review, wrote that the test should be abolished. She argued that it has discriminatory origins — designed to keep people of color and women from practicing law — and could be replaced with a number of better options, such as new grads serving apprenticeships.

“With time constraints and requirements, test-takers generally have 1.8 minutes to answer each question on the exam,” she wrote. “The bar exam demands split-second thinking without consulting any authorities for every portion of the exam. This kind of lawyering in the real world would be met with sanctions, and could be malpractice.”

But the bar exam has its share of allies, many of whom cite the importance of having a measuring stick when it comes to competency. If not, the public could be in danger of having substandard legal representation. 

The National Conference of Bar Examiners (NCBE), which coordinates the widely used Uniform Bar Exam, surveyed U.S. adults last year  and found that they overwhelmingly support a bar exam for prospective lawyers. In a statement announcing the survey results, the NCBE quoted Zel M. Fischer, a judge on the Missouri Supreme Court, explaining why he believes the exam is necessary. 

“Lawyers are entrusted to protect the legal interests of the American people and are called upon for everything from the mundane to the extraordinary, from fender benders to murders,” he said. “Could you imagine a campaign to allow doctors or commercial pilots or engineers to skip their licensing exams and begin operating or flying or building bridges? It’s not a good idea for those professions, and it's certainly not a good idea for recent law school graduates.”

Editor's note: this full story is availble in the January-February issue of The National Jurist. You can subscribe to the digital newsletters, for free, here.