July is the month when thousands of law school graduates anxiously take their bar examinations so they can become lawyers for millions of people throughout their careers. Preciously little scrutiny has been given to the bar examination in the fifty states by the legal profession, law professors, students and others interested in how lawyers are shaped and who can and cannot get into this fraternity.
Bar exams customarily are many years behind actual developments in the law as they relate to ordinary people. The questions deal heavily with commercial and property questions, traditional criminal law and negligence cases and some ancient lore which emerged one or more centuries ago. There is little reflection of recent poverty, environmental, women’s right, tenant, consumer, and corporate responsibility legal trends which have given more rights to ordinary citizens challenging centers of power. Over the years, there has been a bias toward questions which reveal the rights of the powerful rather than the absence of rights and remedies for the weak.
These exams also emphasize memorizing legal rules instead of the judgment and creativity of the law graduate’s responses. Consequently, they exert at many law schools a strong pressure to take courses and study material which cater to these examinations. At some of the lesser renowned law school, this has contributed to a trade school atmosphere.
At the more famous schools the process is more subtle but still heavily oriented at the so-called “bread and butter” courses. Students who wish to specialize in the frontier areas of the law mentioned above are likely to be less prepared for the bar exam than those who take the more established pathways through the curriculum.
A new idea–the multistate bar examination–featuring 200 multiple choice questionsover a six hour examination period is spreading rapidly. Thirty two states now give this uniform test developed by the National Conference of Bar Examiners (NCBE) of Columbia, Missouri in close association-with the Educational Testing Service (ETS) of Princeton, New Jersey.
Since it was first given in February 1972, law students have been complaining to me about its stress on knowing picayune yet vague differences between definitions of rules that have to be memorized. They claim that it requires even less judgment and analysis than the Law School Aptitude Test also administered by ETS.
One of the more astounding discoveries made by the students is that even the experts can’t agree on the “best answer” to many of the multiple-choice questions. For example, the two Bar Review Courses in Washington, D.C., differed on the answers to 54 out of 200 questions on the February 1972 exam.
Joe Covington, Director of Testing for NCBE confirms that the answers to old exams are not given to the students or to the Bar Review Courses. How then can such wide discrepancies be cleared up and the ambiguities in the questions be analyzed?
There is a likelihood that the NCBE multi-state test will spread to more states and become exclusive. Presently states have a day or two devoted to essay type questions. But already, Pennsylvania and New Jersey, according to Mr. Covington, don’t even bother to grade the essay questions if the law graduate makes a certain score on the multiple‑choice questions.
Since some prominent corporate lawyers running bar associations have complained about the large number of young lawyers coming into the profession, some with reforming zeal, it is time to look into the tiny elite which secretly shapes the policy behind these bar exams.
Consumers of legal services have enough to complain about without seeing more artificial barriers and mechanistic hurdles increase to distort legal education and penalize innovative and judgmental thinking.