REFORMING THE BAR EXAM: A THREAD 1/

Due to the ongoing pandemic, the CA bar exam has been altered and delayed several times. As a result, I've had some time to ruminate on how the bar can be reformed for the better. Below is a list of some of the best potential ways to do so.

This is by no means an exhaustive list. Also, note that these are just suggestions, and I don’t necessarily have strong views on any of them either way. However, I will examine them in turn. 2/

#1: MAKE THE BAR OPEN BOOK

This solution is perhaps the simplest and most beneficial one. Some states, including NV & LA, have already made this year's exam open-book. 3/

A lawyer's job involves spotting potential legal issues & applying the applicable law to the facts of their clients' respective circumstances. These skills are what the bar exam aims to test; accomplishing these tasks is critical to receiving a passing score. 4/

What lawyers are not required to do is memorize every rule of law. Once presented with their client's situation, lawyers (or often their new associates) then research the law to determine whether the client has a cognizable legal issue that the lawyer can successfully pursue. 5/

In fact, not properly looking into the matter before advising a client can constitute a breach of ethical duties and evidence for a malpractice claim.

Thus, the bar exam does not only fails to reflect daily practice, it directly contradicts it. 6/

Further, changing the format of the exam to open-book would not impede the bar's goal. In fact, it would actually aid it!

By not having to focus as much on memorizing every exception to an exception, applicants can instead spend more time on the actual analysis itself. 7/

This change wouldn't be overly drastic. Even open-book, there's not enough time to review every relevant rule. Students would still need to know the basic law. However, they would not be required to remember the exact wording of every minor rule in over a dozen practice areas. 8/

#2 CANCEL THE MPRE

The MPRE is not a particularly difficult exam; most students regard it as an annoyance. The sole subject matter covered is legal ethics. However, the bar itself tests ethics rather heavily through MC & one essentially guaranteed essay. 9/

It's unclear, then, why both are needed. The MPRE's cost was recently raised to $135, yet another in a long line of expenses, incl. bar exam registering (almost $1k), bar prep companies ($1.5-3.5k) & various application fees, that students must pay to be admitted to practice. 10/

Further, the MPRE is usually hosted in remote testing centers. Combined with its lack of efficacy and repetitive nature, this is one long drive and expense that students should be reprieved from having to make. 11/

#3 DON'T TEST ABA MODEL RULES

Similarly, students must learn the ethical rules of their respective state and the ABA's model ethical rules.

Look, I get it. Most states model their rules after the ABA's, and learning them familiarizes students with a nationwide standard. 12/

But students are not seeking admission to practice in every state. The ABA has no jurisdiction or authority (shoutout to @BadLegalTakes). Lawyers are bound only by their state's rules. With ~15 other subjects to learn, requiring knowledge of both does not make much sense. 13/

#4 ADMINISTER THE BAR POST-1L

Most states do not allow state accredited law schools; CA does. Students at non-ABA accredited schools must take the First Year Law Students' Examination to be eligible for the bar. The so called 'baby bar' covers several bar-tested subjects. 14/

The FYLSX can serve a model for the timing of the bar exam. Most bar subjects are covered during 1L. Thus, it makes sense to have students take the bar shortly after they have learned the subject, rather than making them re-learn it all 2-3 years later. 15/

This solution poses several problems. First, not all bar-tested subjects are covered during 1L in every school. Including these subjects in the 1L curriculum, if even possible, would make 1L even more difficult than it already is. 16/

Students would also have to study instead of working during the summer, posing a problem for lower-income students. And many students need the work experience gained during 1L summer to be competitive in OCI. /17

On the other hand, students could begin working right after graduation. During school, many students rely on student health insurance and student loans. The delay in being able to work after graduation can lead to a loss of insurance and the end of the loans' grace period. 18/

If the test were administered post-1L, students could begin practicing immediately, thus being able to register for their firm's health insurance plan and pay off their debt. 19/

#5 DIPLOMA PRIVILEGE FOR ABA-ACCREDITED SCHOOLS

This year, some students hoped that, given the financial & medical restraints imposed by COVID, they would be absolved of taking a delayed exam. Most states, worried about admission of unqualified attorneys to the bar, refused. 20/

Many states used to have a diploma privilege. Wisconsin is the only that has retained it. In Wisconsin, all bar subjects are taught & graduates of its two ABA-accredited schools are not required to take the bar (if maintain a certain GPA & pass moral character application). 21/

This program makes sense in the context of small states without many lawyers, as it incentivizes students to study and practice in state. As these states have only a handful of law schools, the admittance of unqualified attorneys is not an overly serious concern. 22/

Other states, especially CA, have a very different experience. CA has 18 ABA-approved schools, over 20 CA-accredited schools, and even some unaccredited schools. Thousands take the CA bar every year. Clearly, the risk of admitting unqualified attorneys in CA is greater. 23/

This, in turn, prevents the application of diploma privilege. However, this could be remedied by winnowing the field of schools. There is no need for so many law schools. As most law school admissions advisors can tell you, the legal job market is oversaturated. 24/

Students at non-ABA accredited schools & even those in lower-ranked ABA-accredited schools have difficulty competing for jobs w/ students from higher ranked accredited schools. Most don't even pass the bar- the 2018 passage rate for students from unaccredited schools was 11%! 25/

For more info, see: https://www.jdadvising.com/does-it-matter-if-i-go-to-a-non-accredited-law-school/.

Of course, this doesn't mean all students at non-accredited schools won't be competent & successful. Such schools help those who can't afford accredited schools, who need to work while studying, or who require part-time programs. 26/

And those are totally valid reasons! However, there's a way to balance these students' needs and diploma privilege for those at higher ranked, accredited schools.

First, as in Wisconsin, ABA-accredited schools could require students to take all subjects covered by the bar. 27/

The downside: less time for electives geared toward their interests. Indeed, my favorite classes were the niche 2-unit electives. However, given a trade off b/w a few more classes & taking the exam, I think most would take the former (especially given its financial burden). 28/

(This could further be remedied through reducing the amount of subjects covered by the bar, such as more niche areas like community property. However, given the worries over competency, this is not likely to happen, and is not necessarily desirable). 29/

Second, diploma privilege would only be available to ABA-accredited schools. This way, concerns over large amounts of unqualified lawyers are assuaged. Students at non-ABA accredited schools would still have to pass a bar exam, similar to the FYLSX for unaccredited schools. 30/

Indeed, the US is an outlier in hosting so many law schools. Most countries only have a handful of schools. As a result, competency concerns are greatly reduced and the legal job market remains competitive. 31/

If needed, additional restrictions can protect against competency concerns. For example, privilege can be applied only to the top 100 ranked schools. Or, as states such as Utah implemented this year, the privilege can apply only to schools with certain bar passage rates. 32/

The main point is that the legal job market has been oversaturated for years by an overabundance of law schools, some of which prey on unsuspecting students with promises of a successful career but instead leave them with insurmountable debt and no prospects. 33/

Even students of accredited schools must take the bar exam after having invested three years and over a $100k in their legal education. If they don't pass, all they are left with is a degree they can't use and debt they can never repay. Careers are over before they begin. 34/

The bar exam is nothing more than applying a band aid to a broken pipe. To address competency concerns and better aid the legal profession, the root cause of the issue must be addressed. 35/

By winnowing the field, state bars can better ensure the competence of their lawyers without adding burdensome restrictions on those whose competence is presumed. 36/

#5 OTHER METHODS

Other suggestions for reforming the bar abound. Some states maintain apprenticeship paths to licensure. Some argue for making law an undergraduate degree, as it is in many other countries, thereby reducing the time and $ it takes to obtain a degree. 37/

Yet others advocate for removing the bar exam altogether, increasing both the employment options for lawyers and the available pool of attorneys for clients. @SharonSandeen wrote an interesting thread on this: https://twitter.com/SharonSandeen/status/1286975414401933312. 38/

Finally, let's throw this (admittedly not great) idea out there just for fun: diff exams for diff practices. Reminiscent of UK barrister/solicitor system, can separate corporate & litigation practice, w/ civ pro & evidence required for those interested in latter & vice versa. 37/