🤿 Sunday Deep Dive: The Bar and Why It’s So High

Trigger warning! Contains content about … the bar exam.

Law grads across the country are in a state of anxious anticipation as they wait to find out if they’ve passed last month’s bar exam. Failing could mean an extended period of unemployment, additional exam fees, mounting student debt, and rescinded or downgraded job offers - not to mention even more grueling studying. “But, hey,” say some lawyers, “we’ve all been there. Some things are tough for a reason.” There’s a growing collection of voices who disagree.

So for today’s multiple choice section, is the bar exam a) a time-honored rite of passage that protects the public and maintains a high standard for the profession? b) a sadistic hazing ritual that reinforces inequality and has very little to do with being a good lawyer? or c) “What bar exam? I’ve repressed that memory.” Don’t worry. We’ve got the Cliff Notes on this one.

Ye Olde Bar

According to this potted history of the bar, up until the mid-1800s, would-be lawyers trained by doing apprenticeships and qualified by taking an oral exam, which was usually given by a judge. It seems like the oral exam was pretty lowkey. One candidate was asked what he knew on a particular topic and replied “nothing.” He passed. Abraham Lincoln is even said to have examined a candidate from the comfort of his bathtub (“You pass the bar … of soap, please.”).

Not everyone had an easy ride. Clara Foltz (having written the amendment to the law that allowed it) became the first woman admitted to the California bar (and an absolute legend) after a three-hour grilling. It was not the first time the bar was used to exclude all but the elite. And it wasn’t the last (more on that later).

In 1855, Massachusetts became the first state to introduce a written element to accommodate those who couldn’t sit the oral exam. And then in the 1870s, Suffolk County, Massachusetts, and New York introduced a compulsory written exam. In 1931, the National Conference of Bar Examiners was founded with the goal of creating a uniform standard of eligibility for admission to the practice of law. A lot has changed since then.

The Bar Is Raised

As many of you know all too well, the bar now takes two days to sit, requires 400-600 hours of studying, and is – according to the Twitterverse – an all-round nightmare from hell. Around 20% of candidates do not pass the exam the first time around, meaning they have to repeat the whole nasty business. Six months later. Which is a super long time to be stuck in career limbo.

As if that wasn’t enough, because this is ‘Merica, the whole process has been successfully monetized. The bar exam is thought to be a $30B industry. Wannabe lawyers face a pretty serious shopping list which can include:

  • Application/registration fees ($150 – $1,300)
  • Bar prep courses ($1,000 – $4,000)
  • Private tutoring (~$150/hr)
  • Fees for additional tests such as the MPRE ($125)
  • Miscellaneous admin fees such as fingerprinting fee ($135)

Yep, that’s a potential total sum of more than $5500 per test! Of course, there is also the cost of covering your basic living expenses while studying takes control of your life. And let’s not forget that most candidates have a massive load of debt hanging over their heads.

The Bar Goes Viral (Literally)

In 2020 and 2021, many states moved the bar exam online to limit the spread of Covid-19. It was, by all accounts, a nightmare. Every cohort tested online reported technical problems, from the software crashing and the screen going blank, to facial recognition, and an anti-cheating feature that didn’t work for Black faces.

In July 2020, Examplify – the software used for remote bar exams – crashed during the Michigan bar. California bar officials report that 31% of people who took the exam in July 2021 experienced technical problems. For the October 2020 New York bar, that figure was 41%. These issues were still not resolved by this July, leading Bloomberg to publish the headline “Oh You’ve Got Tech Woes? Try Taking the Bar.”

In addition to those disrupted, many more were understandably affected by anxiety surrounding the glitches. Some were incorrectly flagged as cheaters. Those that were in-person had their own problems too. Exams were delayed and canceled. That’s on top of the fact that students were at risk of catching the virus.

Some states took a different approach. Washington, Oregon, Utah, Louisiana, and the District of Columbia put in place “emergency diploma privilege” rules which allowed 1k+ candidates to become licensed to practice law without taking the bar. Emergency diploma privilege was also instituted during the California earthquake in 1906, World War II, and the Korean War. Prior to Covid, the only state that offered diploma privilege as an alternative to the bar was Wisconsin (and to a lesser extent New Hampshire). Wisconsin’s diploma privilege system only applies to graduates of ABA (American Bar Association) accredited law schools within the state. It is something of a relic – in that Wisconsin simply kept theirs while other states adopted the bar – but it’s a product of the state’s confidence in their schools. In fact, experts argue that the system encourages the judiciary and legislature to work more closely with schools to ensure they are providing an appropriate, top-notch education.

Earning their license in this unorthodox way doesn’t seem to have hindered the progress of the 1k+ lawyers mentioned above. Five were hired by century-old law firm Davis Wright Tremaine, which says the absence of a bar exam result was “not a concern” and that the associates had “established their capabilities.” Washington State, Oregon, North Carolina, and Hawaii even lowered the cut score (pass mark) for the state bar in 2020.

The Covid-era shake-up has sparked some serious beef about the bar and left some in the legal community wondering if it’s really necessary at all. Calls to #abolishthebarwent viral on Twitter. Activist groups started popping up, including United for Diploma Privilege, “a grassroots coalition of recent law graduates, lawyers, law professors, and legislators pushing for attorney licensure reform that would do away with the bar exam.” Experts published by The Washington Post, the Wall Street Journal, and Above The Law chirped in on the movement too.

Bar-riers to Entry

In 1912, (ABA) accidentally admitted three Black lawyers as members. Thereafter, they made sure to check applicants’ race and gender before admitting them. That overtly discriminatory practice stayed in place until 1943. In the ‘60s and ‘70s, the NAACP and ACLU argued that bar exams were being used to prevent Black candidates from becoming lawyers. Concerns that the bar reinforces inequality continue to this day.

In 2020, 66% of Black candidates passed the bar on their first try, compared to 88% of white candidates. Possible explanations include bias in the test, unequal standards of pre-law-school education, and financial challenges such as higher student debt and the higher likelihood that Black students have to work while studying.

The unequal pass rate for minorities translates to underrepresentation in the profession. Black Americans make up 13% of the population but just 4.7% of lawyers are Black.

Great Bar Score = Great Lawyer?

Another major complaint about the bar is that it doesn’t test whether candidates are fit to be lawyers. The test is all about memorizing loads of things whereas real-life lawyering is all about critical thinking and a great deal of looking stuff up. If anything, going off memory is more likely to result in some kind of malpractice. Plus, the law changes. The bar also fails to test other skills like negotiation, composing letters, and interviewing clients. And it does little to prepare lawyers for an in-house role where a basic understanding of business and finance is essential.

Moreover, there’s little empirical evidence that the bar is a useful test for weeding out people who aren’t cut out to be attorneys. Malpractice is not more common in Wisconsin. Complaints and disciplinary actions are not more common in states with lower cut scores.

The complaints don’t end at high costs, racial discrimination, and, well – pointlessness. Economists worry that a challenging bar exam could be abused to, “create an artificial shortage [of lawyers], reduce competition, drive up prices, and drive down the quality of services.” Meanwhile, 80% of civil legal needs are going unmet.

Law firms are struggling with staff shortages. And an international survey found that 20% of lawyers under the age of 40 are thinking of leaving the profession. Plus in-house legal teams have a growing need for talent as their role within businesses expands. Companies are leaning more on legal for business advice and to help them deal with increasingly burdensome responsibilities like ESG compliance, privacy, and new territory like the metaverse.  

Propping Up the Bar

Okay, so the bar isn’t perfect but it’s gotta have some pros right? Sure. The truth is that plenty of university degrees don’t teach the practical skills required for a career in the field. It’s pretty hard to know how good a lawyer someone will be until they actually start practicing. The bar acts as an imperfect but helpful proxy to make sure that only smart, hardworking people end up with a license.

Secondly, not all law schools are created equal. They’re certainly not equally regarded by employers. The bar creates a level of standardization that, in theory, can reduce discrimination against strong candidates from less prestigious colleges.

The National Conference of Bar Examiners (NCBE) says it is “confident in the validity, reliability, and fairness of the exam because it has been carefully developed and vetted to meet professional testing standards.”

A Case of Snowflake-itis?

Isn’t this just another case of snowflake younger millennials complaining that life is too hard? If they don’t have what it takes to write a challenging exam, they won’t be able to cope with the challenges of a legal career, right? Maybe. But if there is a more affordable and effective way to evaluate would-be lawyers, it seems worth exploring. Putting students through a financial and emotional ordeal just because “we had to do it when we were their age” seems cruel. And if the profession really requires a strong tolerance for suffering, maybe it’s time to change the profession.

The Alternatives

What if it is time to say adios to the bar? We still need some way of deciding who is able to practice the law. Here are some possible reforms.

Wait for the new test

  • The NCBE is designing a new test they’re calling the Next Gen Bar Exam which is set to be on desks in 2026. The new test is supposed to focus less on memorizing stuff and more on legal skills such as legal research, legal writing, and client relationships, although it’s not really clear how the heck they will go about doing that.
  • An exam redesign volunteer suggested that test-takers could be given a transcript of a client counseling session to crit. It’s an interesting idea but it will be several iterations of the iPhone before we get a chance to judge the execution.

Lower cut score

  • In 2020, California’s Supreme Court lowered the passing score for the California Bar Exam to 1390 from 1440. The next round of exams saw a 10%+ increase in the pass rate, especially for underrepresented test-takers. In October 2020, compared to July 2019, 28.5% more Hispanics, 25.8% more Asians, 23.9% more Blacks, and 20.8% more Whites passed. Rhode Island has since lowered its own state cut score and at least 3 other states (Texas, Arizona, and Michigan) are considering following suit.

Expand the UBE

  • Some reformers are keen for states to move over to the Universal Bar Exam, rather than each offering their own test. The UBE is accepted in nearly 40 jurisdictions meaning that, regardless of where lawyers sit the test, they can practice in many parts of the US (at least for a limited period of time).
  • State-specific bar exams are more restrictive. The UBE is also easier to pass than a state exam which means it’s less of a burden on test-takers, especially those who can’t afford to be unemployed while they prepare.

Diploma privilege (DP)

  • The rest of the US could follow in Wisconsin’s footsteps and license law grads without requiring them to pass a bar exam. After all, the President of the NCBE got her license through diploma privilege (such juicy irony).
  • DP could even be offered as a voluntary alternative to the bar. States could institute additional requirements for licensure, such as a set number of supervised practice hours, CLE courses, and character fitness tests. States could even create a “learner’s permit,” like the kind given to new drivers, which would allow grads to fulfill some legal duties, but not others until they can parallel park without scratching up their moms’ cars (metaphorically speaking).
  • These are not just pipe dreams. In Minnesota for example, the State Board of Law Examiners has announced that it will “take two years to study the bar exam … and the impact of being a state that admits lawyers based on their scores.” They will be investigating alternatives to the bar, including diploma privilege.

You may be smiling smugly as you read this, enjoying the fact that you paid your dues and passed the bar a long time ago. But the #abolishthebar movement raises questions that are relevant for the entire industry.

1. Let’s start with inequality. Legal departments can’t do much to change who becomes licensed to practice but there are lots of things that in-house teams can do to tackle this problem. You can make sure that interview panels are diverse, track diversity metrics, allow flexible and remote working, and get educated about unconscious bias.

2. Then there is the matter of practical skills (which the bar is clearly not great at testing). Freelance attorneys would be wise to bulk up their resumes with CLE courses (like Hotshot which we provide to all our wonderful Lawtraders) and even non-legal-specific skills, such as management and data analysis. Companies can offer paid work experience to law students and grads who are waiting to take (or retake) the bar. And in-house teams would be wise to skill up their legal pros so that they can take on more generalist roles, especially if you’re part of an early-stage start-up. Generalists will be extra valuable if we do end up in a recession.

3. Finally, not every legal task requires an attorney. Don’t forget about all the fabulously talented legal pros who never took the bar. After all, non-JDs can save you time and money.