When and Where We Enter: Rethinking Admission to the Legal Profession
Law Review Article
bar exam design
This essay uses several lenses, including professionalism, lawyer competence, and widespread concern about high stakes testing to question why the bar examination should be virtually the only means of admission to the profession. Drawing on two major criticisms of the existing bar exam regime-- that it tests only a few of the ten lawyering skills which the ABA's MacCrate Report has identified as necessary to competent practice; and that it has an impermissible disparate impact on applicants of color, impeding the profession in its stated commitment to increasing diversity--I propose a new, alternative, experientially-based bar exam, the Public Service Alternative Bar Exam (PSABE). Applicants who elected the PSABE would spend ten to twelve weeks working in the state court system, providing badly needed resources for the courts' justice initiatives while being evaluated on all the MacCrate skills in a real-life, real-time setting in what I argue would be a "better" bar exam. The proposal is grounded analytically in Title VII's requirement that employment tests be manifestly related to job performance, and historically in a 1980 experiment by the California Committee of Bar Examiners which demonstrated that a clinical, performance-based exam can effectively assess an applicant's minimum competence to practice law.