Paul L. Caron

Tuesday, August 2, 2022

Stephen Carter, Deborah Merritt, And The Bar Exam

Deborah J. Merritt (Ohio State; Google Scholar), Stephen Carter on the Bar Exam:

Eminent Yale Professor Stephen Carter has penned has penned a thoughtful critique of the bar exam [RIP to the LSAT? Let’s Kill the Bar Exam, Too]. Professor Carter notes the exam’s similarities to the LSAT, which some law schools have abandoned as an admissions requirement. In addition to their shared affection for multiple choice questions, the LSAT and bar exam both constrain the diversity of our profession. Despite the bar exam’s disproportionate racial impact, Professor Carter notes, the exam has never been properly validated. Here, he cites a column I wrote in 2017 for the AALS Newsletter.

As I wrote then, state bar examiners and NCBE designed the bar exam around a definition of minimum competence that they “felt in their bones.” NCBE did not conduct a practice analysis of the knowledge and skills that new lawyers need until 2012. That analysis supported some of the doctrinal subjects that NCBE was testing, but not the depth of memorization required by the exam. The analysis also confirmed that skills like researching the law, fact gathering, negotiating, and interviewing were essential for law practice–all skills conspicuously absent from the bar exam.

NCBE conducted another practice analysis in 2019, which once again exposed numerous flaws in the exam. My own research conducted with Logan Cornett and IAALS (the Institute for the Advancement of the American Legal System) [Building A Better Bar Exam: The Twelve Building Blocks Of Minimum Competence], reached a similar conclusion: the written bar exam tests both too much and too little. It restricts admission to the profession (especially of people of color) without adequately protecting the public. ...

How else can we license lawyers? Professor Carter suggests wider use of Wisconsin’s diploma privilege–licensing all graduates of ABA-accredited law schools. Here I part ways with him. If law schools taught law students all of the ways they need to think like a lawyer, I might agree. But most law schools persist in the illusion that 3 years of reading judicial opinions (or, for many students, 1-2 semesters of reading judicial opinions followed by 4-5 semesters of downloading case squibs and course outlines from Quimbee and other sources) teaches students to “think like lawyers.” ... 

Fortunately, it is possible to improve both legal education and licensing by adopting an experiential education path to licensing. ... How do these programs work? How do they achieve reliability and fairness in a feasible manner? I’ll address those issues in future posts. But for an overview, see this research guide that I coauthored with Logan Cornett.

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