This is an illogical reason for legal education to remain stuck in the 19th century. Law teachers are bright people. The did very well in school. They are educable. They can learn to teach skills and values along with doctrine and analysis.

The problem, of course, is that they don’t want to do this. Some don’t want to do it because they do not understand why they should. Those are the people who have not read the Carnegie Report. The number of such people will diminish over time as more and more law teachers learn about the compelling case that the Carnegie Report makes for significantly reforming legal education in the United States.

The other group is the bigger problem. These are the teachers who understand the problem but don’t want invest the time and effort to change their approach to teaching. People outside of the academy do not understand how difficult it is to “make” a law teacher do anything, even when the school has strong leadership. Bar examiners and licensing authorities can help reform-minded teachers affect the attitudes of teachers who resist change.

Bar examiners and licensing authorities are responsible for determining the knowledge, skills, and values that new lawyers should possess. Most bare examiners I know would like for the bar examination to evaluate a broader range of attributes than current bar examinations evaluate. Bar examiners should not shy away from tryng to improve their bar exams because they think law teachers are incapable of teaching skills and values. This is an invalid reason to maintain the status quo.

If bar examiners indicate that they are seriously interested in improving their bar examinations, many law teachers will respond positively and even work with bar examiners to fashion bar examinations that more fully evaluate an applicant’s readiness to become a lawyer. Other law teachers will come along later, when it becomes obvious that their students are not being adequately prepared for the new bar exam or for law practice.

As long as the bar exam continues to resemble a traditional law school exam, a sizeable percentage of law professors will continue their 19th century ways. This would make it more difficult – and take much longer – for legal education to implement the changes that must be made sooner or later.

Certainly the bar exam question remains the moose (I’ve decided that’s more appropriate than an elephant, these days) in the room and yet like other mooses we’ve heard a lot about of late, how relevant is it in reality? After all, how good is the CURRENT law school curriculum and pedagogy at preparing students to pass the bar? Not very good at all. Is there a real conflict between getting prepared for even an unreformed NY bar exam and spending the law school years in active learning, acquiring and exercising real professional decision-making capacity (which doesn’t exactly hurt you on the bar, either)?

One facile answer is, it doesn’t much matter WHAT you do in law school beyond the first year; if you start out with at least basic literacy, any halfway decent bar review course can inculcate enough technique and bottled doctrine for you to pass (remember, no extra credit for getting more than two-thirds right). So don’t let the bar worry you during law school, do what you want , realizing that at the end you’ll have to suck it up and spend the extra $$$ and eight weeks of your life (and for many states other than NY, the bar doesn’t necessarily require even that much). The people who have serious trouble passing the bar are very often those who’ve taken the greatest number of “bar courses”, i.e., spent the bulk of their law school years sitting passively in large classrooms listening to others recite about appellate decisions. Or their life issues during the post-law school, pre-bar weeks have overwhelmed their best-laid plans. As I think everyone, at this point, knows, there is zero correlation between law school traditional bar courses and bar exam passage, at least when you control for other factors like having to work during the bar review period. So why are we even having this conversation?

But of course the rational response doesn’t cut it, in this as in other things: not that it’s going to happen, but law schools could tell law students day and night for three/four years that all they really need to get through the bar is absolute totally undistracted devotion to a bar review course (including all the practice tests and extra reviews that many graduates foolishly skip), and a lot of the students still wouldn’t believe it and would protest and demand “More bar courses! You must make us take more bar courses!”

And will they get an argument from the faculty who have all those beautiful preps they just need to update every semester? No, they will not.

So, not sure whether those of us who think our students are getting kind of ripped off in law school should buy into the “first we have to reform the bar exam” argument — heaven knows the bar desperately needs work, but even if it remains the essentially silly exercise of stuffing graduates like Strasbourg geese and then, well, you know, that it is, I don’t believe that means law school can’t be used for the far more difficult and important tasks of preparing new lawyers for professional practice.

Vanessa Merton