Reexamining the Bar Exam

A new year typically comes with high hopes about reform and innovation.  In legal services regulation, these hopes remain high, even though like the proverbial Charlie Brown and the football, these hopes are usually dashed in the face of inertia, parochialism, and protectionism. 

And yet our hopes might be rewarded in one key area of legal services regulation, and that is in the complex area of attorney licensing.  This is due to the important work of serious scholars and reformers who have been working hard to develop a truly comprehensive and novel body of research to illuminate the question of what is and is not successful in the examination of new law graduates.  Among these great contributions over the past several months in this space, two stand out for their deep rigor and refreshing reformism (maybe even radicalism?).  A year ago, Professor (and former dean) Joan Howarth gave us Shaping the Bar, a book distinctive in its highly informed connections between the troubled history of the bar and attorney regulation and the predicaments that we face in a rapidly changing, and hopefully more inclusive, world.  This should be required reading for all efforts to look anew at the current situation.  Likewise, Deborah Merritt, recently retired from Ohio State, has been working for years on professional competencies and bar issues (among other topics within her expertise).  With the COVID pandemic, a number of states started experiments in non-exam licensing, albeit usually provisional.  California, for its size and impact, was the most important of these states.  Professor Merritt, and her co-authors, have undertaken a major research study on California’s reforms.  They promise more deep and dense research on other states (Oregon, notably) that are experimenting with reform.

Progress in licensing reform has been rather glacial in he past many years.  The advent of the Uniform Bar Exam was important, but did not really disrupt the edifice of traditional post-graduate testing.  Nor does the so-called “Next Generation” bar exam, presently being crafted by NCBE, portend a revolution in how we evaluate law graduates and new lawyers.  It is, after all, a coat of somewhat different colors, but is not nearly the sort of comprehensive competency-based evaluation that diligent reformers recommend.

And so maybe, just maybe, the door is sufficiently ajar to see meaningful change.  In this area, scrupulous empirical work is required.  So, too, are bold ideas, and a new generation of reformers (whom I won’t name, only because I risk omitting some), building upon the great work of the titans in this space, are steadily offering such ideas for our consideration.  Will the gatekeepers listen and learn?