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What's the bar exam like anyway?

By iHeartPodcasts

In this episode of Stuff You Should Know, hosts Chuck Bryant and Josh Clark examine the evolution and current state of the bar exam in the United States. From its origins in colonial-era apprenticeships to today's standardized testing format, they detail how the exam has transformed into a complex, multi-day assessment that most states now use to determine who can practice law.

The hosts explore the significant challenges facing bar exam candidates, including substantial financial costs and preparation requirements. They also address ongoing controversies surrounding the exam, such as studies questioning its effectiveness in predicting lawyer competence and concerns about racial and socioeconomic biases. The discussion covers various reform efforts, including alternative paths to bar admission and plans for a redesigned exam format.

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What's the bar exam like anyway?

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What's the bar exam like anyway?

1-Page Summary

History and Evolution of the Bar Exam

Chuck Bryant and Josh Clark explore how the bar exam evolved from informal colonial-era apprenticeships to today's standardized testing. Initially, aspiring lawyers would apprentice under established attorneys, with their acceptance often depending on casual testing by judges. By 1750, the U.S. colonies began introducing formal bar exams to maintain professional standards.

The National Conference of Bar Examiners (NCBE) introduced the multi-state bar examination (MBE) in 1972, later adding essay components in 1988 and performance tests in 1997. By 2011, most states adopted the Uniform Bar Examination (UBE), allowing score transfers between jurisdictions while maintaining state-specific requirements.

Structure and Format of the Modern Bar Exam

The UBE consists of three main components: the 200-question Multistate Bar Examination (MBE), the Multistate Essay Examination (MEE), and the Multistate Performance Test (MPT). The exam takes 12 hours over two days, with passing scores typically ranging between 260-270 out of 400 points, varying by jurisdiction.

Costs and Challenges of Bar Exam

The financial burden of the bar exam includes registration fees, preparation courses costing up to $6,000, and additional expenses for travel and equipment. These costs particularly impact low-income and minority test-takers, who often must work while preparing for the exam.

During COVID-19, remote testing introduced new challenges, including software problems and strict monitoring requirements. Bryant and Clark note that some candidates faced particularly difficult circumstances, including one woman who continued taking the exam while in labor.

Criticisms and Controversies Surrounding the Bar Exam

Recent studies question the exam's effectiveness in predicting lawyer competence. A 2024 Nevada study found minimal correlation between bar exam scores and lawyer performance, while a 2021 Oklahoma study revealed that practicing attorneys struggled to pass the exam when retaking it without preparation.

The exam has faced criticism for perpetuating racial and socioeconomic biases. Statistics show that Black law school graduates pass at rates 24% lower than white students, with similar disparities affecting other minority groups.

Some states are exploring alternative paths to bar admission. Wisconsin offers diploma privilege for graduates of state law schools, while states like Oregon and Washington are implementing apprenticeship programs. The NCBE is planning a next-generation bar exam that will be more essay-heavy, though progress in reform remains slow.

1-Page Summary

Additional Materials

Counterarguments

  • The evolution from apprenticeships to standardized testing may have been necessary to ensure a consistent standard of legal knowledge across a growing and diversifying nation.
  • Standardized testing, including the bar exam, can provide a measurable and objective way to assess candidates' knowledge and readiness to practice law.
  • The cost of bar exam preparation could be seen as an investment in a profession that often yields high returns in terms of career opportunities and income.
  • The challenges faced during remote testing due to COVID-19 were unprecedented and required quick adaptation, which may have led to temporary and unforeseen issues.
  • The bar exam's difficulty ensures that only those who are sufficiently prepared and knowledgeable are licensed to practice law, which can be seen as protecting the public interest.
  • Racial and socioeconomic biases in bar exam results may reflect broader systemic issues in education and society that extend beyond the exam itself.
  • Alternative paths to bar admission, such as diploma privilege or apprenticeships, might not provide the same rigorous assessment of legal knowledge and skills as the bar exam.
  • The NCBE's efforts to reform the bar exam with a greater emphasis on essays could lead to a more comprehensive evaluation of a candidate's ability to practice law effectively.

Actionables

  • You can support aspiring lawyers from low-income or minority backgrounds by setting up a crowdfunding initiative to help cover their bar exam expenses. By creating a platform where individuals can donate funds, you provide financial assistance for registration fees, preparation courses, and other costs associated with the bar exam. For example, you could partner with law schools to identify students in need and promote the initiative through social media to raise awareness and funds.
  • You can volunteer to provide free or low-cost tutoring services for bar exam candidates, focusing on the MBE, MEE, and MPT components. By sharing your knowledge and study strategies, you help alleviate some of the financial burdens associated with expensive preparation courses. For instance, if you're proficient in a subject that's part of the bar exam curriculum, you could offer weekly study sessions at a local community center or library.
  • You can advocate for bar exam reform by writing to your state's bar association or legal education committees, expressing concerns about the exam's effectiveness and biases. By presenting data from recent studies that question the correlation between bar exam scores and lawyer competence, you contribute to the ongoing conversation about alternative paths to legal licensure. For example, you could draft a letter or petition highlighting the disparities in pass rates among different demographic groups and suggest considering diploma privilege or apprenticeship models as viable alternatives.

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What's the bar exam like anyway?

History and Evolution of the Bar Exam

Chuck Bryant and Josh Clark discuss the transformation of the bar exam from its colonial roots to its current standardized form, highlighting the continual efforts to uphold the standards of the legal profession.

Bar Exam Roots in Colonial-Era Standards: Initially Apprenticeships or Informal Judge Testing

Initially, those aspiring to practice law in colonial America would apprentice or clerk for an established lawyer. This period saw apprentices working for free or even paying for the opportunity to learn the craft. Personal relationships with judges and their subjective opinions were significant, as candidates' acceptance into the bar often depended on informal testing by a judge.

Anecdotal evidence suggests that this process was quite casual at times, as exemplified by Abraham Lincoln, who once examined a lawyer in what appeared to be an informal conversation, only to later proclaim him an attorney.

Bar Exam Evolution: Multiple-Choice, Essay, Performance Components Leading to Ube In Early 2000s

As the U.S. colonies recognized the need for standardized legal practices, bar exams were introduced by 1750 to maintain professional standards.

18th Century: Introduction of U.S. Bar Exams; Became Standardized Over Centuries

The evolution of the bar exam has led to a mix of multiple-choice questions, essays, and performance tasks to evaluate candidates comprehensively.

By 1972, hand cramping from essay tests and the desire for standardization brought about the introduction of the multi-state bar examination (MBE), which was introduced by the National Conference of Bar Examiners (NCBE).

In 1988, the NCBE reinsta ...

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History and Evolution of the Bar Exam

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Counterarguments

  • The apprenticeship model may have provided a more practical, hands-on approach to legal education that some argue is lacking in today's more academic and standardized testing methods.
  • The reliance on personal relationships and subjective opinions in colonial times could have allowed for a more holistic assessment of a candidate's suitability for the legal profession, beyond what standardized tests can measure.
  • The introduction of standardized bar exams may have inadvertently created barriers to entry into the legal profession, particularly for those from less privileged backgrounds who may not have the same access to test preparation resources.
  • The MBE's focus on multiple-choice questions could be criticized for not adequately testing a candidate's practical legal skills or their ability to construct legal arguments, which are crucial for practicing law.
  • The UBE's portability of scores between jurisdictions might overlook the importance of lawyers having specific knowledge of the laws and legal nu ...

Actionables

  • Explore the evolution of professional standards by comparing modern certification processes in different fields. Just as the bar exam has evolved to ensure a standardized measure of competency in law, you can investigate how certifications in fields like IT, healthcare, or education have changed over time. For example, look into the history of the Project Management Professional (PMP) certification or the changes in medical board certifications to understand the progression and current requirements.
  • Create a timeline of your career or educational milestones to reflect on personal growth and future goals. Drawing inspiration from the historical development of the bar exam, map out the key points in your own professional journey, including informal learning experiences, formal education, and any tests or certifications you've achieved. This can help you identify patterns, appreciate the progress you've made, and set targets for what you want to accomplish next.
  • Engage in a mentorship relationship to gai ...

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Structure and Format of the Modern Bar Exam

The Uniform Bar Examination (UBE) is the standardized bar exam structure utilized by multiple U.S. jurisdictions. It comprises three main components: the Multistate Bar Examination (MBE), Multistate Essay Examination (MEE), and the Multistate Performance Test (MPT).

UBE: MBE, MEE, and MPT Components

MBE: 200-question Core Law Test, MEE: Essay Questions, MPT: Practical Skills Assessment

The UBE begins with the MBE, a crucial 200 multiple choice question test that covers seven different areas of law including civil procedure, contracts, torts, constitutional law, criminal law and procedure, evidence, and real property.

Following the MBE is the MEE, which composed of essay questions that account for 30% of the UBE score. Lastly, the UBE includes the MPT, which assesses practical skills through tasks such as drafting legal documents or memos, and comprises 20% of the UBE score ...

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Structure and Format of the Modern Bar Exam

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Clarifications

  • The Uniform Bar Examination (UBE) is a standardized test adopted by many U.S. states to simplify the bar admission process. It allows candidates to transfer their scores between participating jurisdictions, increasing mobility for lawyers. The UBE promotes consistency in evaluating legal knowledge and skills nationwide. This uniformity helps maintain high professional standards across states.
  • The Multistate Bar Examination (MBE) is a nationally recognized test designed to assess fundamental legal principles and reasoning skills. It is developed by the National Conference of Bar Examiners (NCBE) to ensure consistency in evaluating candidates across different states. The MBE focuses on multiple-choice questions that test the ability to apply law to fact patterns, emphasizing critical thinking. Its results are a key part of the overall bar exam score and influence admission to practice law.
  • The Multistate Essay Examination (MEE) tests an applicant’s ability to apply legal principles to specific fact patterns in essay form. It covers a broad range of subjects beyond those tested on the MBE, including areas like business law, family law, and trusts. Each essay requires clear, organized writing that demonstrates legal analysis and reasoning. The MEE helps assess how well candidates can communicate legal arguments in writing, a key skill for practicing law.
  • The Multistate Performance Test (MPT) evaluates practical lawyering skills by simulating real-life legal tasks. Examples include drafting client letters, legal memoranda, or pleadings based on provided case materials. It tests the ability to analyze facts, apply law, and communicate effectively under time constraints. The MPT emphasizes practical problem-solving rather than memorized legal knowledge.
  • The MBE covers core subjects fundamental to most legal practice areas, ensuring a broad assessment of essential legal knowledge. These subjects are chosen because they represent common and foundational principles across U.S. law. Mastery of these areas demonstrates a candidate’s readiness to practice law competently. The selection also promotes uniformity in evaluating candidates nationwide.
  • The 400-point scale means the total score from all UBE components adds up to 400 points. Each section (MBE, MEE, MPT) contributes a portion of these points based on weighted percentages. Scores from each section are combined to form the final total score. Jurisdictions set a minimum total score (e.g., 260) to pass the exam.
  • A jurisdiction is a geographic area or legal authority, such as a state, that governs the administration of laws and legal processes. Eac ...

Counterarguments

  • The UBE's standardization may not adequately account for specific legal principles or nuances that are unique to individual states, potentially disadvantaging examinees who will practice in jurisdictions with unique laws not covered by the UBE.
  • The heavy reliance on multiple-choice questions in the MBE might not be the best measure of a candidate's ability to practice law, as it emphasizes memorization and test-taking skills over practical legal skills.
  • The MEE and MPT's combined 50% weight may not sufficiently assess an examinee's practical legal skills, as the majority of the exam (MBE) is still focused on theoretical knowledge.
  • The 12-hour, two-day format of the UBE can be excessively strenuous, potentially impacting the performance of examinees who do not test well under prolonged pressure or have certain disabilities.
  • The variation in passing scores between jurisdictions can lead to confusion and may seem arbitrary, a ...

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Costs and Challenges of Bar Exam

The bar exam is a significant milestone for aspiring lawyers, but it comes with a set of costs and challenges that can affect candidates differently, depending on their resources and circumstances.

Bar Exam Prep Can Be Costly for Aspiring Lawyers

Additional Costs: Registration Fees, Travel/Lodging For Exam, Specialty Equipment Like Laptops For Typing

Preparation for the bar exam can be financially demanding. Registration fees alone can range from a few hundred to over a thousand dollars, varying by state. Candidates choosing to type their answers must often pay an additional fee to use a laptop provided by the examiners, ensuring that no cheating occurs. Moreover, preparatory courses can eat into a candidate's budget, with some costing as much as $6,000.

For those not living in the vicinity of a testing site, travel and lodging expenses add another layer to the cost. This investment of time and resources means that bar prep is not just an academic hurdle but also a financial one, favoring those who possess either significant savings or the privilege of not having to work while studying.

Burden on Resource-Lacking Low-income and Minority Test-Takers

The cost associated with law school and bar exam preparation creates disparities for underprivileged groups. It is noted that Black and Hispanic students are more likely to work during their bar prep period in contrast to some of their white counterparts, who may have the luxury to focus solely on studying for the exam. This difference can impact the relative ease or difficulty of passing the exam and shapes the demographics of the legal profession.

Logistical Challenges: Remote Testing Issues During Covid-19, Including Technical Problems, Rigid Rules, Inhumane Conditions

The move to remote testing during the COVID-19 pandemic introduced a host of new difficulties. Candidates faced issues with software crashes and ...

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Costs and Challenges of Bar Exam

Additional Materials

Clarifications

  • The bar exam is a professional test that law graduates must pass to become licensed lawyers. It assesses knowledge of legal principles and the ability to apply them in practice. Passing the exam grants the legal authority to practice law in a specific jurisdiction. This ensures that lawyers meet a standard of competence and ethics before representing clients.
  • Typing answers on a laptop during the bar exam requires special permission to ensure exam security and prevent cheating. Exam administrators provide secure, locked-down laptops that restrict access to unauthorized programs or internet. Candidates must pay fees to cover the cost of these specialized devices and software. This controlled environment maintains fairness and integrity in the testing process.
  • Facial recognition technology uses algorithms to identify individuals by analyzing facial features. It often relies on lighting and contrast, which can be less effective on darker skin tones due to biases in training data. Many systems were initially developed with predominantly lighter-skinned faces, leading to higher error rates for dark-skinned users. This causes misidentification or failure to verify identity during remote exams.
  • The bar exam typically includes multiple-choice questions, essays, and performance tests to assess legal knowledge and skills. During remote testing, strict rules require continuous monitoring via webcam and screen sharing to prevent cheating. Candidates must remain visible and stationary, with limited breaks allowed. Technical issues and strict proctoring protocols can create additional stress and challenges.
  • During remote exams, candidates must keep their eyes on the screen continuously to prevent cheating. This rule allows proctors or monitoring software to verify that test-takers are not looking at unauthorized materials or receiving outside help. Continuous eye contact helps maintain exam integrity in an unproctored environment. It is a strict measure to simulate in-person supervision remotely.
  • High costs of bar exam prep limit access for low-income candidates, reducing their chances to pass. This financial barrier disproportionately affects minority groups, who often have fewer resources. As a result, fewer minorities enter the legal profession, affecting its diversity. Economic inequality thus directly influences the demographic makeup of lawyers.
  • Working during bar exam preparation reduces the time and mental energy available for focused study. This can lead to less thorough understanding and retention of material. Consequently, test-takers who work may have lower pass rates compared to those who study full-time. The added stress and fatigue from balancing work and study further impair exam performance.
  • Bar exam preparatory courses provide structured study materials, practice exams, and expert guidance to help candidates pass the bar. They often include ...

Counterarguments

  • The cost of bar exam preparation, while high, is an investment in a professional career that can yield high returns, and thus may be justified as part of the professionalization process.
  • Some jurisdictions offer waivers or reductions in fees for low-income applicants, which can mitigate the financial burden for those who qualify.
  • There are a variety of free or low-cost resources and study materials available to candidates who cannot afford expensive prep courses.
  • Working while studying, although challenging, can provide practical experience that enriches a candidate's understanding of the law and can be beneficial in the long term.
  • The challenges faced during remote testing due to COVID-19 were unprecedented and affected many sectors, not just the bar exam; examiners had to quickly adapt to a difficult situation.
  • Some candidates may have preferred remote testing for its convenience and the comfort of taking the exam in a familiar environment.
  • The strict rules during remote testing were intended to maintain the integrity of the exam and ensure that all candidates were assessed fairly.
  • The legal profession has been making efforts to increase diversity and accessibility, and the iss ...

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Criticisms and Controversies Surrounding the Bar Exam

Critics argue that the bar exam is flawed not only as a test for licensing lawyers but also in its broader social and cultural implications because of biases and its questionable ability to ensure lawyer competence.

Bar Exam Criticized For Failing to Predict Lawyers' Competence and Success

Study Questions Bar Exam's Validity due to Minimal Correlation With Lawyer Effectiveness

Studies have shown that the bar exam is not necessarily indicative of a lawyer's future performance or success. A 2024 Nevada study found only a small positive relationship between bar exam scores and performance ratings by peers and supervisors, suggesting that the exam is minimally predictive of career success. Furthermore, in a 2021 study, practicing attorneys from Oklahoma failed the bar exam when retaking it without preparation, with longer-practiced attorneys performing the worst. The National Conference of Bar Examiners (NCBE) asserts that the bar exam tests for lawyer competence, yet there is no clear definition of competence from the organization.

An attorney friend of Chuck Bryant skeptically remarked on the bar exam's usefulness in measuring practical lawyering skills. He expressed that while the bar exam tests knowledge under time pressure, it does not prepare one for essential legal tasks such as depositions. He stressed the importance of learning practical skills through hands-on experience for lawyer effectiveness.

Bar Exam Alleged to Perpetuate Racial, Socioeconomic Biases In Law

The bar exam has a history of gatekeeping that has adversely affected immigrants, Black people, and other people of color. In 1912, a "check here for race" requirement was added to the application to take the bar exam, effectively barring African American individuals until 1943. Tyler v. Vickery, a class-action lawsuit, alleged that Georgia's bar exam cut score was adjusted to keep Black people from passing, although the Fifth Circuit Court of Georgia did not find intent to discriminate.

Statistics show that Black law school graduates pass the bar exam on their first try at a rate 24% lower than white students, with other minority groups also displaying lower rates. Contributing factors include the cost of law school and the need for many minority students to work during their bar prep. Historically, people of color were banned from taking the bar exam, and despite unsuccessful lawsuits during the 1970s over discriminatory policies within the bar exam, black and Hispanic Americans continue to be underrepresented in law.

Alternative Paths to Bar Admission Considered, Progress Slow

Debate On Reforming or Replacing the Bar Exam

Several states offer alternatives to the traditional bar exam. Wisconsin has diploma privilege for graduates from the state ...

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Criticisms and Controversies Surrounding the Bar Exam

Additional Materials

Counterarguments

  • The bar exam is intended to serve as a minimum competency threshold to protect the public from unqualified practitioners, not necessarily to predict long-term career success.
  • The bar exam's rigorous nature ensures that only those with a strong understanding of legal principles can become licensed, which may not correlate directly with day-to-day tasks but is still a critical foundation.
  • The NCBE might argue that while the bar exam isn't perfect, it provides a standardized measure of legal knowledge across different jurisdictions, which is important for maintaining a consistent legal profession.
  • The bar exam's focus on knowledge under time pressure is designed to simulate the stressful conditions under which lawyers often have to work, testing their ability to think and apply knowledge quickly.
  • The historical racial and socioeconomic biases associated with the bar exam are being addressed through various diversity initiatives and scholarship programs aimed at leveling the playing field for underrepresented groups.
  • The lower pass rates among minority law school graduates could be attributed to a variety of factors, and efforts are ongoing to provide additional support and resources to these students.
  • Alternative paths to bar admission, such as diploma privilege and apprenticeships, may not provide a consistent standard of legal knowledge and skill across the profession.
  • The UBE's portability is seen as a benefit by many, allowing for greater mobility and flexibilit ...

Actionables

  • You can support legal education reform by donating to organizations that advocate for experiential learning opportunities for law students. By contributing financially, you help these organizations develop programs that provide practical legal training, which could be a more effective way of preparing future lawyers than traditional bar exam preparation. For example, your donation could fund internships, clinics, or simulation courses that give law students hands-on experience in real-world legal scenarios.
  • Encourage dialogue on legal education by starting a book club focused on literature about the history and impact of the bar exam. By selecting books and articles that explore the bar exam's effectiveness and its impact on different demographics, you can facilitate informed discussions among peers. This can raise awareness and potentially influence opinions on the necessity of the bar exam and alternative pathways to legal practice.
  • Volunteer with local legal aid organizations to gain firsthand experience of ...

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