For decades, law school graduates have endured a stressful rite of passage, spending the first 10 weeks after classes end taking cram courses in the arcane details of the law before sitting down for the grueling, days-long bar exam. Those who do not pass cannot practice law, at least in nearly all the states and the District of Columbia that consider the exam the professional standard.
But that standard, so long unquestioned, is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments. Some states, including Arizona, Iowa and New Hampshire, are exploring or have adopted other options, questioning the wisdom of relying on a single written test as the gateway to legal practice.
The debate over the exam is not new, but it broke out in the open after the results of last summer’s exam were released in the fall, showing that the 51,005 test takers had the poorest results in nearly a decade.
Many law school deans, bristling from criticism that they are replenishing their ranks with less academically qualified students as the number of law school applicants has fallen sharply, began to openly question the mechanics of the bar exam.
About 80 law school deans last November jointly asked, for the first time anyone remembers, for details on how test questions were chosen and scored. The situation was already touchy after remarks made the previous month by a top bar exam official, who defended the results as indisputably correct, and then, in what the deans viewed as verbal dynamite, labeled the test takers as “less able” than their predecessors.
Indicators “all point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013,” said Erica Moeser, president of the National Conference of Bar Examiners, the nonprofit organization in Madison, Wis., that constructs and scores the professional entrance exam.
Stephen C. Ferruolo, dean of the University of San Diego School of Law, said that it was the test, not the students. He asked the bar testing agency in December for details about the test to assure that it was fair and reliable.
Otherwise, he maintained, the exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.”
Ms. Moeser has denied requests for additional information.
The exam is an indispensable safeguard against unqualified practitioners, she said in a telephone interview, noting that “it is a basic test of fundamentals” that has “no justification other than protecting the consumer.”
But critics have long questioned not only the expense and time devoted to taking the exam but also whether clients benefit from an admissions standard that is largely based on rote memorization.
The bar exam “does nothing to measure lawyering skills,” said Kristin Booth Glen, a law professor and former dean of the City University of New York School of Law, which trains public interest lawyers, “and only shores up the guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.”
All states but one, Wisconsin, require passing the bar exam to become a licensed lawyer, but bar associations in states including Arizona and Iowa have been exploring alternatives. The Iowa State Bar Association proposed an in-state “diploma privilege,” similar to neighboring Wisconsin’s, that would allow graduates of local law schools to skip the bar exam and begin practicing immediately.
The bar exam does not test Iowa-specific law, and almost all graduates pass it on the first try anyway, said Guy R. Cook, a personal injury lawyer and former president of the state bar association who headed a commission recommending the changes. Studying for the exam heaps more debt on graduates already mired in law school loans, the commission found, and deters them from practicing in lower-paying rural areas.
The Iowa Supreme Court rejected the proposal last year, but asked for recommendations, due at the end of March, for more efficient and economical ways to handle the exam and the admissions process.
“Innovation is always hard,” Mr. Cook said of the initial defeat.
One reason that change is hard is the differing interests in the legal industry. State bar associations control the admissions process, in part by using the testing tools, which include a lengthy multiple choice test, that they buy from the bar examiners conference. The conference, which has scored the exam since the early 1970s, reported almost $20 million in annual revenue, nearly 85 percent of which came from exam sales, according to its most recent tax filing in June 2013. Outside lawyers and legal academics can earn extra money by helping prepare exam questions.
Eliminating or curtailing the current bar exam would give law schools more leeway to create programs and conduct testing that determines who becomes a lawyer. The schools say the exam’s outsize importance forces them to devote more resources, including bar-specific courses, to prepare graduates for the crucial test rather than focusing on legal principles or hands-on law practice.
At the University of San Diego, Professor Ferruolo said that the academic gap between last year’s test takers and their predecessors was so small that the school was trying to figure out what went wrong so it could help its students more effectively. Last summer, 73 percent of students passed the bar exam, down from 75 percent the previous year. They had admissions scores only one percentage point lower than the previous class, he said.
On the other side of the country, Nicholas W. Allard, the dean of Brooklyn Law School, took exception to the testing agency’s hands-off response after the school’s bar passage rate fell nine percentage points last year among graduates with the same law school entry scores as those who took the test in 2013.
The testing agency is “tone deaf,” he said, and compared it to Lily Tomlin’s comedic telephone operator Ernestine, who “blithely dismissed any complaints about service saying: ‘We don’t care. We don’t have to. We’re the phone company.’ ”
The bar examiners conference, he recently said, “is the phone company of Ernestine’s time — powerful, inscrutable and resistant to change.”
State legal establishments, too, have expressed concern that an all-or-nothing test helps narrow the lawyer pipeline. About one-third of states allowed diploma waivers for decades before the bar exam became standard, and some are re-exploring their options.
Arizona, for example, has decided to allow students to take the bar exam in their final year of law school so, as with Iowa’s proposal, they will not need to spend as much time and money on test preparation.
California tests students enrolled in unaccredited law schools after their first year of studies. Students must pass the “baby bar,” which measures their knowledge in contracts, criminal law and torts, before they can continue their legal education. Last month, the New York City Bar Association urged establishing a committee to explore allowing bar admission based, at least in part, on supervised learning.
New Hampshire has such an alternative licensing model. Its University of New Hampshire School of Law allows second- and third-year students to participate in a kind of apprenticeship where they learn basics like taking depositions. Those accepted to the Daniel Webster Scholar Honors Program create portfolios of their written work and record their oral performances, which are reviewed by state bar examiners after each semester. Those who pass the review can skip the bar exam and go directly into practice.
The program, which was supported by the state’s legal community, was not put in place quickly, though, said John B. Garvey, the program’s director. Exploring alternatives began in 1992 and, including several years as a pilot, the program took 17 years to be fully adopted.