A Better Bar: Why and How the Existing Bar Exam Should Change
Law Review Article
bar exam design
Despite the fact that competent lawyers should possess a wide range of knowledge, skills, and qualities and the fact that different kinds of lawyers need different strengths, the entire process used to select lawyers - from the Law School Admission Test (LSAT), through law school, and up to the bar exam - overemphasizes some skills and completely disregards others. Those most likely to become lawyers are those equipped to take timed tests that emphasize the ability to analyze and apply legal rules. Although these abilities are important, they certainly are not the only ones competent lawyers need. In fact, a blue-ribbon commission of lawyers, judges, and law professors conducted an in-depth study and concluded that competent lawyers must also be able to do legal research, conduct factual investigations, problem solve, communicate effectively, counsel clients, negotiate, organize and manage legal work, recognize and resolve ethical dilemmas, and, in some instances, litigate and effectively use alternative dispute resolution procedures. Most of these skills, however, are not tested on the bar exam, are only cursorily assessed during law school, and are not factored into the law school admissions process. Further, qualities like a demonstrated commitment to promote social justice, a sense of fairness and morality, and the willingness to perform public service activities, although given lip service, are not accounted for in any meaningful way in the process of deciding who may get a law license.
This Essay focuses on the bar exam, the final step in the process of deciding who may practice law. Currently, the exam is over-inclusive, allowing those with a very narrow range of skills to obtain a law license. It is also under-inclusive. By testing a very narrow range of skills in a way that is unrelated to the practice of laws and via a methodology that is weighted in favor of those from middle- and high-socioeconomic backgrounds, the existing bar exam delays or excludes people from the practice who may be competent lawyers and who may be the lawyers most likely to do pro bono work and serve underrepresented ommunities. This Essay explores ways to modify existing bar examination requirements to account for the wide variety of skills, knowledge, and qualities competent lawyers should possess, keeping in mind that all lawyers need not possess exactly the same proficiencies. This Essay suggests that the concept of a competent lawyer should be defined broadly in order to account for a wide variety of qualities and skills, perhaps even including an applicant's commitment to perform public service and serve underrepresented legal communities.