Thoughts on a "better bar exam"

The ABA Journal has a long piece by Stephanie Francis Ward on the bar exam. It includes a few quotations from me that I thought I’d dive into.

“I think people really want to solve this one major problem, and that’s, ‘Is there a body of students out there who would be good lawyers, but are failing the bar? Is there some way of getting them through the bar?’ ” asks Derek Muller, a law professor at Pepperdine University, who writes at the website Excess of Democracy.

He also wonders if changing the bar exam would solve any problems, including a decreasing national pass rate. The overall pass rate was 54% in 2018; and in 2008 it was 71%, according to NCBE data.

“If lawyers are saying, ‘I did it this way, kids need to do it this way, too,’ that’s not productive. At the same time, if schools are saying, ‘We need to change the bar in whatever way we can to get kids to pass,’ that’s not productive either,’ ” Muller says.

He’s not sure that changing the format would make much of a pass rate difference, and he wonders how some ideas, like giving a partial bar exam after students finish their first year of law school, would actually play out.

“I think that would put extraordinary pressure on the first year of law school in a different way. For a lot of students, it’s a steep learning curve the first year, and to add another exam, I think that would be a step backward,” Muller says.

There are really three major concerns that Ms. Ward helpfully drew from our conversation.

First, what exactly is the problem we’re trying to solve? There are so many competing debates, in my view, that it helps to parse them out. The most material concern, in my view, is a Type I/II error problem—is the bar letting the wrong people in to practice law, or is it preventing the wrong people from practicing law? Few, I think, believe the bar admits too many. So if it’s admitting too few, what system do we want to help figure out which “good” attorneys are out there who are passing the present bar exam. A lot of reform efforts, in my view, don’t adequately start with this precise formulation of the problem.

Second, the “kids” (a pejorative I use only in scare quotations!) often face two competing arguments. Either new bar admittees need to take the bar exam “the old fashioned way,” which is essentially a traditionalist argument that holds little weight in the face of material criticism. Or new bar admittees should face as few barriers to practice as possible, essentially an argument raised primarily by law school deans who have seen demand drop in recent years, admissions standards declines, and bar passage rates decline along with them. There’s assuredly merit in both—but both are also too easily wrapped up in self-interest and merit deeper reflection.

Third, some reform proposals, in my view, are worse than the existing problem. Take the one suggested, a “baby bar” after the first year. That’s a proposal that exists in California among non-ABA-accredited schools to ensure that admissions standards are acceptable and that retaining the students in their legal education is worthwhile. For the vast majority of law students at ABA law schools, this is not a problem. It would place extraordinary pressure on preparing for this exam in the summer, curtailing summer working opportunities and changing the first-year curricular emphasis. And it would effectively create a second bar exam when people are already complaining about the first!

All this is to say, reform efforts (and there are thoughtful ones out there!) must make careful evaluations—evidence-based, out of public interest rather than law school interests or anticompetitive guild interests. We’ve seen fairly little change in the last decade, I think, in part because the interests have not often been public oriented, and, when they are, the proposed changes do little to address the primary concerns.

Professor Deborah Jones Merritt’s proposals are the right kind—thinking about breaking up the bar exam into components to make testing easier (think how the MPRE is already a separate component), or providing more time flexibility (to address accommodation concerns and to ensure deeper thinking on legal issues). We’ll see if these, or others, make their way into the bar in the decade to come.