Is it time for a bar exam revolution?
Bar pass rates have been down (historically speaking) since 2014. The high cost of legal education means student loan debt is up, and the job market for new lawyers remains tight. We have a serious access to justice problem, with people who need legal representation unable to afford it or hesitant to hire a lawyer for other reasons. The legal profession doesn’t reflect the racial and ethnic diversity of the population it serves. The forces of technology and globalization are changing the legal profession and the world. And all of this comes as the need is greater than ever for a well-qualified, ethical legal profession to uphold the rule of law.
Changes to the bar exam, even revolutionary changes, can’t solve these challenges alone. But a fair, valid, affordable bar exam is a crucial piece of the puzzle, because the bar exam, when it’s done right, is one of the best tools the profession has to make sure everyone who has the necessary skills and knowledge—and no one who doesn’t—gets the opportunity to be a lawyer.
So how do we make sure that the bar exam is done right? How can the skills and knowledge that are necessary for effective and ethical practice be assessed in a way that is fair and affordable for every candidate? How do we construct a test that appropriately assesses the variety and complexity that is “the practice of law” in a rapidly changing world? How can we make the bar exam relevant to all potential lawyers, regardless of what type of practice they plan to embark on?
First, we need to know what it takes for new lawyers—all new lawyers—to be minimally competent. To determine that, we need nationwide data, a broad snapshot of the current state of legal practice by new lawyers. This is why our study includes a practice analysis survey that is the most comprehensive such survey of lawyers ever conducted.
But the question isn’t just what new lawyers need to know. It’s also which of those things should be tested on a licensure exam, and which should instead be addressed by other stakeholders invested in the training and regulation of new lawyers, such as law schools, legal employers, and bar associations. Through extensive stakeholder involvement in our study, the Task Force seeks to enlarge the scope of the conversation to consider the many possibilities, both within and beyond the bar exam, for reimagining the way the legal licensure process works.
So, for example: could legal research tasks or simulated client interviews be incorporated into the bar exam without increasing the cost of the exam? Could the bar exam reflect technology’s growing role in the delivery of legal services, and is it practical for it to do so considering the rapid pace of technological change? Could experiential learning portfolios compiled by students during law school be part of the licensure process? Could bar associations and legal employers use information from our practice analysis survey to create new kinds of post-licensure training or mentoring programs?
When we start to consider the answers to these questions, we can also start to see how truly responding to the challenges faced by the profession will take all of us, working together. The Task Force is committed to doing its part in that work; NCBE has the expertise, infrastructure, relationships, and experience to build a bar exam that will help ensure the legal profession is ready to face both current and future challenges. When we build a better bar exam, we’re building a better profession, too. We hope you’ll join us by taking the practice analysis survey and by subscribing to our website to follow our study and learn about future opportunities to get involved.