By Dale Whitman
It is surprising that we law teachers have paid so little attention to the very next event that our students experience after graduation: the bar admission process. In this column I hope to refocus our thinking on this topic.
In theory, bar admission is the responsibility of the supreme court in most states. In practice, the courts usually delegate their authority to a ?board of bar examiners? or the like, and pay relatively little attention to the board?s work. I believe that most boards of bar examiners work diligently, usually with no pay and little thanks, to make the admission process fair and reasonable for our graduating students.
Bar examiners are aided by the National Conference of Bar Examiners, headquartered in Madison, Wisconsin. The NCBE supplies a number of excellent testing products, nearly all states use at least some of them. They include:
NCBE also provides well-thought-out and highly professional training for bar examiners ? although, of course, their participation in the training is voluntary.
Despite the good faith of bar examiners and the outstanding efforts of NCBE, I believe there are serious problems with the bar admission process in many states. The problems, which I describe below, exist in part because few people other than the applicants and the examiners pay much attention to the process. For law professors, the organized bar, and the courts, bar admission has simply not been a ?squeaky wheel? and hence has been largely ignored. Perhaps it is time for all of us to give it more thought.
What needs fixing? The bar admission process involves a number of elements: The collection and analysis of applicant data, the evaluation of character and fitness, and the conduct of hearings when character and fitness is called into question. But the element that occupies the attention (not to say worry) of nearly ALL applicants is the administration and grading of the bar examination. And it is with the examination that I believe the most serious problems exist.
In most states the examination consists of two sections (usually administered on two successive days): the NCBE?s multistate (multiple choice) examination and an essay examination. The essay portion of the exam in a given state may be developed in any of three ways: by the drafting efforts of the state?s own examiners, by their solicitation of questions from out-of-state drafters (usually law professors), or by use of the NCBE?s Multistate Essay Exam (MEE). In 2001 the MEE was used in 14 states; most of the remaining states used locally-drafted essay questions. These locally-drafted questions are often problematic in the following ways.
• Selection of question topics. Material for essay questions often appears to be drawn from cases or issues currently being worked on in the examiner?s law office, or that strike the examiner as ?interesting.? This material may be far from the ?main stream? treatment of the general subject in law schools courses or bar review courses. When this occurs, the small number of applicants who may, by chance, have encountered the material before are able to handle the question competently while the rest of the applicants can only guess.
• Number of subjects. The number of subjects covered by essay questions seems to continue to expand. Most states now seem to have between 12 and 15 subjects; Texas has only 7, while Georgia has 18. New subjects are added, but rarely is a subject dropped. Often the states purport to examine on many more topics than actually appear on a given administration of the exam, so that applicants may study a topic but have no opportunity to demonstrate their knowledge on the test.
This proliferation of topics imposes real costs and burdens on applicants in terms of bar review time and expense, not to mention personal stress. Applicants commonly spend upwards of $2,000 on review courses, in addition to foregoing some or all income for a study period of six or eight weeks. (In the interest of full disclosure I must mention that I teach bar review courses, and in general I think the courses do a good job of fulfilling their rather narrow purpose. But I still believe exams that require such extensive preparation are unnecessary and undesirable.)
Number of issues in each question. The number of issues to which examiners expect responses on examiner-drafted essay questions is also a significant problem in some jurisdictions. For example, before reforms instituted in the late 1990s, I regularly reviewed Arizona essay questions which the examiners believed raised 20 to 25 issues. Questions on the Washington examination, which I continue to review in the Property area, commonly have 15 or more issues. Given the typical allotted time of 30 to 50 minutes, it makes little sense for examiners to expect coverage of such large numbers of issues.
A related problem with similar results occurs in some states that allow only a very short time (e.g., 20 minutes) for applicants to write answers to questions that contain moderate numbers of issues, and that could be answered well only with a greater time allotment. The result of these practices is to invite superficiality in the answers and to reward those who can think and write most quickly.
• State-law specific answers. Many states expect state-specific answers on the essay portion of the examination. With few exceptions (e.g., unusual and especially important state-law topics such as community property or oil and gas), this seems unnecessary. Other states find it sufficient to accept general U.S. law-based answers on most or all subjects.
• Written standards for questions. It seems obvious that a jurisdiction using examiner-drafted essay questions should develop and follow written standards governing the drafting and grading of questions, but it is by no means clear that all states do so.
• Release of questions. Essay questions and the issue outlines used to grade them should be released shortly after each administration of the examination. Without such releases it is impossible for an outsider to judge whether the examiners themselves have a sound understanding of the issues raised by their questions, and whether they are imposing reasonable expectations on the applicants. Yet in a number of states this is not done.
The problems listed above bespeak a degree of fundamental misunderstanding of the proper role of the bar examination. The 1987 ?Code of Recommended Standards for Bar Examiners? describes the examination?s purpose, I think quite rightly, in the following terms:
The bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles. The examination should not be designed primarily to test for information, memory or experience.
To far too great an extent, present practices reflect an examination ?designed primarily to test for information, memory or experience.? There are some bright spots in this picture. The quality of locally-drafted essay exams has been improving, although gradually. In addition, the use of the NCBE?s Multistate Performance Text has been growing; it was administered in 27 jurisdictions in 2001, a very positive development. But there are still serious and burdensome problems with bar examination essay question quality ? problems that tend to undermine confidence in the system and to make outcomes more arbitrary and less reliable.
How many pass? Because each jurisdiction sets its own ?cut score? for passage of the bar examination, pass rates vary dramatically around the country. Consider the success rate of first-time takers of the examination in July 2001. (The July administration is more representative than the February administration, since most recent law school graduates take the test in the July immediately after their graduation.) If we eliminate territorial jurisdictions with very few applicants, we find:
• 16 jurisdictions had a pass rate of 85% or higher, including Minnesota with 93%, North Carolina with 96%, New Mexico with 94%, South Dakota with 95%, and Utah with 97%.
• 16 jurisdictions had a pass rate of 75% or lower, including Alaska with 71%, California with 70%, Maine with 70%, and New Hampshire with 63%.
From the viewpoint of national policy, it is very hard to justify the enormous variation in these numbers. Surely they cannot be explained adequately on the basis that lower-quality law schools feed the low pass-rate states, or on the basis that the legal environment in the low pass-rate states is an unusually difficult and challenging one, requiring distinctly better qualified lawyers in order to serve the public adequately. It is hard to avoid the conclusion that the state a law graduate selects has a very strong bearing on the graduate?s probability of successful bar admission.
I believe that the bar examination performs a useful and important gate-keeping function, and I do not want to be understood as arguing for its elimination. But surely it should reflect a greater level of professionalism and consistency in result than we are seeing at present.
The law schools? role. The way law schools interact with the bar admission process is also problematic in some ways. Law schools are often uncertain about how much information they should disclose about their students to bar admissions authorities. Students? law school records on such matters as disciplinary actions, substance abuse, mental illness, and other personal problems are often of great interest to bar examiners, but law school administrators are sometimes torn between a desire to protect the public and a felt need to protect the privacy of their students. Clearer guidelines, agreed to by thoughtful persons on both sides, could be extremely helpful.
In addition, law schools might well rethink the extent to which they prepare their students directly for the bar examination. The AALS Committee on Bar Admission and Lawyer Performance made a comprehensive study of this matter last year. Its report shows that law schools are doing more than most observers might realize, and suggests that we law teachers have much to learn from one another about helping our students through this stressful period of their lives.
Standards for bar examiners and law schools. In 1987 the ABA, NCBE, and AALS published a ?Code of Recommended Standards for Bar Examiners.? This document was well thought out and quite useful, although it does not seem to have received much recent attention. However, it is now fifteen years old and could benefit from substantial revision and augmentation. There are a number of issues related to the bar admission process, viewed in light of today?s practices, that it does not cover or covers incompletely.
A few weeks ago representatives of these same three organizations met in Washington to consider creating a ?Joint Working Group on Legal Education and Bar Admission.? Other organizations involved with the bar admission process may also decide to participate. The Joint Working Group?s charge would be to consider and recommend strategies and ideas for improvement of the working relationships among law schools, graduating law students, and bar admission authorities in the United States. The Joint Working Group would be expected to consider the following activities:
1. Holding a nationwide conference on Legal Education and Bar Admission in the fall of 2003.
2. Drafting a revised and updated version of the 1987 Code of Recommended Standards for Bar Examiners.
3. Drafting a statement of recommended policies and standards for law schools with respect to their involvement in the bar admission process.
As envisioned, the Joint Working Group would consist of a chair and eight additional members, with all of the appointees to be agreed upon by all of the sponsoring organizations. The overall life span of the Joint Working Group is expected to be about two years.
I hope that the governing bodies of the organizations mentioned above will all concur in the creation of the Joint Working Group, and that it in turn will be a catalyst for needed improvements in the work done by both law schools and bar examiners. We need to be about the business of making bar admission a fairer, more consistent, and less traumatic experience for our students.
* This article appeared in the August 2002 AALS Newsletter.