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Darrow-Kleinhaus, S --- "A Response to the Society of American Law Teachers' Statement on the Bar Exam" [2005] LegEdDig 51; (2005) 14(2) Legal Education Digest 3

A Response to the Society of American Law Teachers’ Statement on the Bar Exam

S Darrow-Kleinhaus

[2005] LegEdDig 51; (2005) 14(2) Legal Education Digest 3

54 J Legal Educ 3, 2004, pp 442-458

In a perfect world there would be no tests and a test like the bar exam would probably be outlawed instead of required for the practice of law. But not for the reasons the Society of American Law Teachers (SALT) would have us believe. The bar exam or any exam would be unnecessary because we would all be born with superior intellects, abilities and capacities, and the assessment of individual competencies would be irrelevant. But in our world competence matters, as it does in the case of a lawyer’s ability to engage in critical analysis. The bar examination, by testing competency in the most basic and essential analytical skills required for the practice of law, serves a necessary function.

After five years of working with candidates who had failed the bar exam multiple times and who passed after they worked together, the author believes that the bar exam appropriately serves its purpose. These candidates passed because they learned to read carefully and actively. They passed because they learned the rules with precision and specificity. They passed because they learned to write a well-reasoned argument based on an analysis of the relevant issues and an application of the facts. They passed because they learned that there were no tricks to be applied, only the law.

The bar examination seeks only to test the fundamental skills that should have been learned in law school. SALT faults the bar exam for not addressing the concerns of its Bar Exam Committee, concerns that might well be appropriate for the goals of the profession but not for the goals of the bar exam. The bar exam is designed to see whether the law graduate has mastered the legal skills and general knowledge that a first-year practising attorney should have. While this means a firm grasp of black letter law, it also means a solid grounding in basic analytical, reading and writing skills.

Anyone who reads what the bar examiners write and looks at the exam questions can see that the bar exam is concerned solely with testing basic skills. While bar exams vary by jurisdiction, each one tests the candidate’s ability to write. Some states consider the ability to communicate in a lawyerly manner so essential that the written portion of the exam is weighted more than the Multistate Bar Examination (MBE).

The essence of lawyering is communication. Essays afford the bar examiners a basis for evaluation of a candidate’s ability to communicate knowledge of the substantive law in an organised and articulate way. Bar examiners rely on essays for the same reason that law teachers do: writing a well-constructed legal essay is a learned skill that requires mastery of the law and the nature of logical argument. These are core legal skills. A licensing process that fails to assess the candidate’s ability to write, analyse and reason logically would be not only inadequate but suspect.

The bar exam requires one to know the rules of law with precision and specificity; it also requires a solid understanding of those rules. Memorisation plays a part, but no more nor less than it does throughout the educational process. A solid knowledge of the rules of law is required to write bar exam essays and answer objective short-answer questions. Unfortunately, too many candidates walk into the bar exam without truly understanding enough black letter law. The MBE is meant to weed out those candidates possessing anything less than mastery of the black letter law with a level of detailed sophistication.

Still, SALT objects to the MBE, claiming that these short-answer questions require candidates to apply the law in artificial ways unrelated to the practice of law: ‘No lawyer can competently make decisions without more context for the case and without the opportunity to ask more questions or to clarify issues’. While this is a true statement, it is not relevant to the bar exam. The point of the exam question is to create a hypothetical universe and test the candidate’s knowledge and thought process within that limited universe. While it certainly might be improved, the MBE is a means of testing a range of substantive law while keeping the grading process manageable. Multiple-choice tests can be graded objectively, free from the possibility of human inconsistencies.

The bar exam requires a candidate to ‘think like a lawyer.’ The bar exam tests the candidate’s ability to ‘think precisely, to analyse coldly.’ One of the most serious misconceptions about the bar exam is that passing it depends on tricks and techniques. There are no tricks to be learned, only the law, as any retaker will unfortunately be able to tell you. This does not mean, however, that a candidate can afford to be unfamiliar with the exam itself. One must know what to expect. We tell our students that the key to success is preparation: preparation for class and for exams in law school; preparation for clients and for court in practice. Still, SALT condemns the bar exam because it requires preparation.

Learning to think like a lawyer is the key to passing the bar. It would be unwise to abandon the bar exam in favour of any of SALT’s suggested alternatives. The proposals either fail to adequately address the need for a uniform measure of minimum competency in the basic analytical skills required for law practice or risk the creation of a legal hierarchy based on the licensing process. First, one goal of an exam that almost every US law school graduate has to pass must be to ensure some measure of uniformity and consistency among test takers who attended widely varying law schools. Second, SALT’s proposed ten-week practical skills component as a substitute for the bar exam is not only inappropriate but unnecessary. Third, the proposal for an alternative licensing system that would rely on a term of public service could create a tiered structure in the profession. While SALT does not specifically advocate oral examinations in place of written ones, it suggests such a move when it faults the bar exam for not testing a candidate’s ability to ‘communicate orally, counsel clients, and negotiate’.

Besides being expensive and impractical, a system based on oral examinations would be inappropriate for evaluation purposes. Oral exams are inherently subjective and generally fail to assess a student’s true knowledge. When the SALT statement is examined in its entirety, it becomes apparent that what SALT blames on the bar exam is not properly attributable to the exam. SALT holds it responsible for everything from the type of exams administered in law schools to the career choices of law graduates and ultimately to the composition of the profession. But the bar exam simply is not the engine behind every aspect of the law school experience.

Day-to-day participation in the law school culture is responsible for a huge change in the wellbeing values and beliefs of the first-year law students. While it might be appropriate for SALT to urge law schools to inculcate certain values and suggest particular career paths to their students in an effort to guide the profession toward the achievement of specific goals, it is wholly inappropriate to place this burden on the bar exam. Since bar admission in nearly all jurisdictions requires a law degree, any requirements that law schools decide to impose on students would become de facto requirements for a law licence.

Finally, while SALT concludes that the bar exam has a ‘disparate impact on people of colour’, it offers no justification to support such a claim aside from a single bar passage rate. Unfortunately, such inflammatory and harmful misconceptions about the bar exam persist, including the myth that it discriminates against minority applicants. Perhaps it is most telling that SALT has failed to mention such studies, especially those which indicate a strong correlation between higher grades in law school and success in passing the bar. That link clearly supports the argument that the bar exam tests the skills learned in law schools. If there are differences between groups, the disparities existed before and during law school. While bar exam results may reflect differences between groups to some degree, the exam does not create these differences. When a student has mastered the basic skills of legal analysis, then the law school has accomplished its task of teaching the student how to learn the law. And when a student has learned how to learn the law, then bar passage is not an insuperable obstacle, but a requirement for entering the profession which must be met like any other.


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