The Bar Exam Inhibits Curricular Reform

The following post comes to us from Tom Guernsey:

In the early 90s, as an associate dean at the University of Richmond School of Law, I attended the first Conclave on Legal Education held by a state bar association. The conclave brought together leaders in the bench, bar, academy, and bar examiners to discuss the future of educating lawyers. The setting was spectacular, Wintergreen, an upscale ski/golf resort in the western part of Virginia. The setting was perfect: serene, isolated, informal, just what you would want for a serious conversation about the status and future of the education of lawyers among the four major players. I joked later that it was fun. The practitioners dumped on law schools, the law schools dumped on practitioners, both dumped on the bar examiners. Everyone was polite to the judges.

Fifteen years later, in the spring of 2007, having been a dean for 11 of those years, I attended another conclave at an airport hotel in Chicago, organized by the American Bar Association’s Council on Legal Education and Admission to the Bar.

The conversation was depressingly similar. Law schools were not teaching students to practice law; faculty scholarship was impractical; new faculty did not have enough practice experience, yada, yada, yada.

This conversation is still going on and law schools are taking the brunt of the criticism for failing. The reality is, however, that the bench, the bar and the bar examiners are equally to blame for law schools not making the innovative changes needed. Brian Z. Tamanaha’s Failing Law Schools is especially critical, of course, of the faculty and two parts of the bar that regulate legal education. Surprisingly, at least to me, there is scant attention in Failing Law Schools, or anywhere else, to what is one of the biggest impediments to curricular reform – the bar examination and the related matter that state high courts requirements make meaningful curricular reform difficult.

The ABA may accredit  law schools for Department of Education purposes, but it is typically the case that state high courts, separate and apart, that have delegated to the ABA the accrediting function for the purpose of who can take the bar examination. In some state, such as New York, the high court also imposes regulations more strict than the ABA.

The fact is, no matter what else a law school sees as its mission, its students and alums see the primary goal as preparing students to pass the bar examination. I think this is reasonable. What I think is unreasonable is to create bar examination requirements and additional state high court regulations that stifle creativity that everyone seems to be demanding from “failing law schools.”

The most obvious example is the number of subjects tested on the bar exam. I am not arguing that we do away with the bar exam, or substitute some other credentialing process (though I could). My point is simply that given the continuation of the typical bar exam, subject matter coverage is too broad, resulting in serious constraints on meaningful curricular reform.

In New York, 19 subjects are tested on the exam. Because the six multistate topics are also covered on the essay, students must learn both New York law and general principles (or federal rules). For example the multistate tests the Federal Rules of Evidence while the essay portion tests New York evidence law. Students not surprisingly feel the need to take these courses (and in many instances are required to take the courses). At Albany Law School, to cover all of this material requires taking courses that at a minimum total 65 credit hours. In addition, students need to take at least 10 additional credits to cover mandated writing and skills courses. So what are we left with to be creative? Somewhere between 10 and 15 credit hours, depending on how many minutes in excess of the ABA required 58,000 the school requires.

I’m just suggesting that you don’t need 19 subjects (six of which you have to learn twice) to test an applicant’s ability to do doctrinal analysis, especially when it means law schools end up with precious little time to do other things we are criticized for not doing.

 

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4 Responses

  1. I agree that subject matter coverage for the bar exam is often too broad. I question, though, whether this fact is the real impediment to curricular reform.

    Instead, I think it is the (mistaken) assumption that law schools must teach and promote “bar” courses often to the exclusion of other curricular offerings in order to keep the bar passage rate up – despite the fact that the studies I have seen indicate that there is no statistically significant correlation between bar courses taken and bar passage rate for most students.

    See https://law.bepress.com/expresso/eps/1889/

  2. Your comments are good ones. However, until the Bar Exam itself reflects practice in a meaningful way (not as the multiple choice questions now do), it is a burden on all Faculty to make sure students can pass that exam – a credential that must be met to practice law.

    No amouint of critiquing the ridiculous questions (in my field – deeds “disguised” as mortgages (no one I have met in practice including my time in leadership in several real estate bar asociations has ever encountered one) or details of the Recording Act (all real estate ownership is supported by title insurance) or even the Rule Against Perpetuities (which real estate folk believed was relevant to estate planning and estate planners thought was relevant to real estate transactions – turns out to be relevant nowhere except rare litigation when no attorneys are involved to advise clients) seeems to convince those developing those National Bar Exams to make them relevant to testing for practice. And, I understand, this is the place where most students who fail the exam, are faililng

    So, yes, make law school relevant – demand that professors (like most of ours at John Marshall Law School in Chicago ) have significant related practice experience (not merely judicial clerkships) in their teaching fields; accept scholarship that is relevant to practice as worthy of law professors in hiring, promotion and tenure matters and fix up that bar exam a hurdle, but not a basis for licensure to practice law.

  3. The extensive subjects students are required to memorize for the bar exam do contribute to inhibiting true reform in legal education. Deans think about these things, and faculty as well want their students to be able to pass the bar. Many students choose (and are counseled to choose) bar-related courses over other curricular offerings, including courses meant to facilitate practice-readiness, for the sole reason of ensuring bar passage. Unless the bar exam is also considered for change and innovation, it will continue to be a factor hindering changes to legal education itself. What might be some potential solutions? Replace some of the traditional doctrinal areas on the bar exam with questions that require an understanding of subjects such as negotiation, interviewing and counseling, or drafting? Could not-so-new technological innovations be harnessed to evaluate the performance of certain skills, or perhaps test the application of doctrine via role plays in simulated settings? This subject deserves further exploration.

  4. UK Centre for Legal Education is the Law Subject Centre within the Higher Education Academy.

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