Our licensing system depends heavily on written exams to assess a prospective lawyer's competence. Both scholars and practicing lawyers have criticized these exams for decades, noting that they do not align with the knowledge and skills that new lawyers use in the workplace. Instead, many lawyers refer to the bar exam as a "rite of passage" or a "hazing ritual" that must be endured to join the profession. Hazing rituals, however, have no place in a profession: they are exclusionary practices designed to limit competition rather than protect the public.
Today, most jurisdictions use materials prepared by the National Conference of Bar Examiners (NCBE) for their bar exams. As one scholar explains, this reliance outsources the profession's self-regulatory functions to a private company. This "outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure." Marsha Griggs, Outsourcing Self-Regulation, 80 Wash. & Lee L. Rev. __ (forthcoming).
The legal profession owes the public a licensing system that focuses on the knowledge and skills that new lawyers need to serve clients competently. We must identify that knowledge and skills through research, rather than through assumptions. As this section explains, our current bar exams are not tied sufficiently to what we know about lawyering competence. In psychometric terms, they have low validity for assessing minimum competence to practice law. These low-validity exams have a disproportionate racial impact, undercutting our profession's commitment to diversity and inclusion. Read about these and other flaws below.
The current bar exam lacks sufficient validity to protect the public from incompetent lawyers. Although the exam is supported by some evidence, it does not link sufficiently to the knowledge and skills that research demonstrates are essential for minimum competence.
White candidates are significantly more likely to pass the bar exam than candidates of color. The current exam does not align well with the skills and knowledge needed to practice law, so it does not serve the purposes for which it is intended. At the same time, the exam is restricting diversity in our profession.
The bar exam is administered only twice a year. This hinders entry into the profession: A candidate who is ill on the exam days, or one who fails an initial attempt, must wait 6 months before retesting. This approach also generates significant hurdles during pandemics, extreme weather events, and other emergencies.
Each jurisdiction sets its own passing (or "cut") score, even when administering the Uniform Bar Exam. States rarely use appropriate procedures to set these scores, undermining any valid use of the exam.
The bar exam requires candidates to study intensively for 10-12 weeks, forgoing income during that time. Candidates also pay for expensive bar prep courses. An exam more closely linked to minimum competence might not require such expense.
Test-takers complete the bar exam under tight time constraints. These limits result in a speeded exam--one that compromises an accurate measure of the knowledge and skills required for entry-level law practice.
The bar exam imposes conditions that are very different from those that lawyers experience in the workplace. As a result, lawyers who live with disabilities struggle to demonstrate their competence. A licensing system should embrace universal design, allowing candidates to demonstrate their competence regardless of disabilities.