Paul L. Caron

Thursday, August 3, 2017

Allard: Valuing The Bar Exam — A Call To 'Poll the Customers'

Allard (2018)TaxProf Blog op-ed:  Valuing the Bar Exam: A Call to "Poll the Customers," by Nicolas W. Allard (Dean, Brooklyn):

No doubt you have heard the aphorism: "everybody complains about the weather but no one can do anything about it".  Well, the bar exam is easier to change than the weather and at least this time of year there are more complaints about it.

Recently, I and other legal educators and leaders, such as Georgia State University, School of Law Professor Andrea Curcio (Scholarship on Bar Exam Alternatives Needed (July 28, 2017)), noted that there has been little change despite years of growing concerns about the need to overhaul the outdated structure of the bar exam.  The entire process is a painfully time consuming, costly, creaky drawbridge to law practice that neither serves the profession nor the public.  The many responsibilities and calendars of those concerned in the judiciary, professional organizations and law schools leads to episodic reactive responses to problems as they pop up.  It is like an unsatisfying game of whack-a-mole rather than sustained critical thinking and research with an eye to meaningful, comprehensive reform.   The sheer inertia favoring the status quo is formidable and it is reinforced by the interlocking relationships of those who benefit from perpetuating the only game in town: a testing business that impolitely might be described as an unregulated monopoly.  Unchallenged by competition and tolerated by the establishment, the bar exam continues to offer an expensive time consuming all or nothing rite of passage only twice a year whose benefits are assumed but not proven.

But the ice may be finally cracking under this seemingly impenetrable system. California has begun to look at the bar exam's content validity, and its State Supreme Court has stripped bar examiners of their authority to determine the passing score on bar exam.  Professor Deborah Merritt of Ohio State University, Moritz School of Law and I both have called for an independent national commission to address comprehensive reform. And, most recently, Professor Curcio called for an open and unbiased examination of the status quo by legal scholars as well as having law review student editors consider symposium issues focused on bar exam alternatives.

This momentum might be further advanced by another novel idea: rather than simply assert that the bar exam serves a worthy purpose which justifies its existence in its current form, why not ask the "customers" of the bar exam to tell us what they think about the test? Why not poll people who have studied and taken the bar exam while the experience is fresh in their minds? Why not also ask employers what they think about the value of the exam to the lawyers they hire?  Survey relatively new lawyers who have been practicing for, say, three to eight years and ask whether there is value in what they studied to pass the bar.

A national professional poll is in order. Or, perhaps an online survey by a colleague in the academy or a journalist who can analyze and publish the results.  The experts no doubt can improve on this quick and dirty list of potential lines of inquiry:

Ask Grads:

  1. Do you believe that the bar exam accurately measured your readiness for practice and was it relevant to either your legal education or your intended work in practice?
  2. Do you believe that preparing for the bar exam improved your readiness to practice law?
  3. Do you feel more capable or more confident to practice in your area of interest?
  4. Could the time spent preparing for the bar exam have been put to better use?
  5. In what ways do you believe that preparing for the bar exam will advance your capabilities as a lawyer?
  6. Overall, was the bar exam worth the time and money you invested in passing it?
  7. What changes would you suggest to improve the licensing of new lawyers?

Ask Employers:

  1. Are your new associates better lawyers for having studied for the bar exam?
  2. Do you believe that the areas most heavily tested by the bar are a useful reflection of what a practicing lawyer must know for your firm or company?
  3. Do you think that multiple choice questions that are designed to be difficult are an accurate test of practice readiness, competence or skills obtained from practical training?
  4. Could you pass the bar exam after one year, three years, five years of practice?
  5. Is the bar exam an accurate measure of someone's skills as a lawyer?
  6. Is the existing bar exam worth the time and money spent preparing to pass it?
  7. What changes would you suggest to improve the licensing of new lawyers?

Ask New Lawyers in their first 3-8 years:

  1. Do you use in practice what you learned to pass the bar exam?
  2. Was the bar examination a worthwhile and valuable experience with respect to your career?
  3. Did your bar exam prep you to become a better lawyer?
  4. What other post-graduation experiential learning or scholastic pursuits would have better prepared you for practice?
  5. What one key learning from your bar studies has benefitted you the most, if any?
  6. Is it justifiable to continue the present structure of the bar exam and licensing new lawyers?
  7. What suggestions do you have for improving the bar exam and licensing of new lawyers?

A legitimate survey of consumers of the bar exam industry’s product would go a long way toward establishing whether there is a need and even some urgency for reform.  In a business climate where airlines, hotels and restaurants constantly seek customer feedback, it is telling that the testing industry and expensive cram courses do not do so, for a simple reason:  They do not feel the need to change or even think about whether improvement is possible.  We must ask ourselves:  Can we do better?  Why is it necessary and acceptable to continue to tolerate the existing traditional bar exam, despite its flaws?  Our answers matter because what lawyers do to administer, advance and protect the rule of law, and to promote economic growth and opportunity, justice, equality, liberty and peace are important for the future of our communities, the nation and the world.

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Oh, I'll answer!

1) I learned more about the law from Barbri than I did in three years of law school

2) Don't be silly! Graduating from law school today no more makes one a lawyer than graduating with a poly sci degree makes one a politician or a drama degree makes one a Hollywood star.

3) I have no idea, as schools like Brooklyn have vastly oversaturated the legal market with desperate graduates, most of whom will, like me, lose the game of musical chairs.

4) The ability of my law degree to get me an interview in the legal profession would have been nice.

5) That law school is a pedagogical disaster and an utter waste of time.

6) It is justified now more than ever given that law schools have torpedoed their admissions standards to ensure their pockets remain lined.

7) Place a cap on the number of people who can take and/or pass the bar exam each year to create legitimate pressure on law schools to right-size the number of graduates they produce. Making law schools cosign all student loan dollars they receive would be nice, too - and make them responsible for making the government whole for the loans that are on an income-based repayment plan because of financial hardship. In fact, I believe there was a failed proposal in Congress to do that in 2015 or so.

Posted by: Unemployed Northeastern | Aug 3, 2017 12:52:48 PM

And how does Dean Allard think this poll would turn out? In 2015, Allard wrote an opinion piece in the NYTimes titled "The Bar Exam is Not the Best Test of a Good Lawyer." The feedback in the comments section was overwhelmingly negative. In fact, I did not see a single comment in support. Many of the commenters were recent law grads too. Isn't that a decent bellweather for how this "poll" would turn out?

See article below:

The only people who support changes to the bar exam are law schools. People who work as attorneys, or aspire to work in the profession, want it to retain some semblance of prestige, which means having a licensing exam. For God's sake, even teaching requires a licensing exam.

Posted by: JM | Aug 3, 2017 6:24:33 AM