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Do We Need The Bar Examination - A Critical Evaluation of The Justifications For The Bar Examination and Proposed Alternatives ?
Do We Need The Bar Examination - A Critical Evaluation of The Justifications For The Bar Examination and Proposed Alternatives ?
Volume 45 | Issue 4
1995
Recommended Citation
Daniel R. Hansen, Do We Need the Bar Examination--A Critical Evaluation of the Justifications for the Bar Examination and Proposed
Alternatives ?, 45 Case W. Res. L. Rev. 1191 (1995)
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Do WE NEED THE BAR EXAMINATION?
A CRITICAL EVALUATION OF THE JUSTIFICATIONS
FOR THE BAR EXAMINATION AND PROPOSED
ALTERNATIVES
I. INTRODUCTION
These days nearly all attorneys in the United States have taken
a bar examination to become licensed to practice law.' The bar
exam is typically the final and absolute determination of whether a
law student may join the law profession. As such, the bar exam
looms large in a law student's career as perhaps the most signifi-
cant preparatory experience. Robert E. Seiler may have best
conveyed the bar exam's import when he said:
Whether or not a [person] will be permitted to use his [or
her] three years of law school work by becoming a lawyer
hangs on the result of an examination which lasts only two
and a half to three days and is given by practicing attor-
neys who are not skilled teachers and who usually are not
skilled in the art of preparing questions; and unless [this
person] passes the bar
2
examination, his [or her] law school
work is for naught.
Due to the bar exam's significance, legal professionals have
studied it closely. Throughout the history of American legal educa-
tion, support for a bar examination of one kind or another has
gone in and out of fashion? However, since the 1920s, support for
1191
1192 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
the bar exam has been more or less entrenched with only a few
raucous voices vainly calling for its elimination.4 In the 1920s, the
American Bar Association (ABA) unequivocally approved the writ-
ten bar examination and rejected the diploma privilege as the pre-
ferred means to gain admission to law practice.5 The diploma priv-
ilege entities law students from certain specified law schools to
automatic admission to the bar upon graduation from those law
schools. Without the ABA's sanction, the support for the diploma
privilege has steadily declined,6 with Mississippi, Montana, South
Dakota, and West Virginia eliminating it within the past fifteen
years.7
em bar exam became entrenched, with only a few critical appraisals, until the 1970s.
During the 1970s, legal education generally came under closer scrutiny. See generally
Leonard L. Baird, A Survey of the Relevance of Legal Training to Law School Graduates,
29 J. LEGAL EDUC. 264 (1978) (study finding that an attorney's own practical experience
is the primary factor in learning and acquiring the essential skills of an attorney). The bar
exam itself also came under scrutiny. See generally Alfred B. Carlson & Charles E.
Werts, Relationships Among Law School Predictors, Law School Performance, and Bar
Examination Results, in 3 REPORTS OF LSAC SPONSORED RESEARCH 211 (1976) (conclud-
ing that bar exams are primarily achievement tests that measure the same legal skills and
knowledge measured by law school grades, undergraduate grades, and LSAT scores); Bard
& Bamford, supra note 2 (providing historical analysis of and lending support to bar
exams); Edward F. Bell, Do Bar Examinations Serve a Useful Purpose?, 57 A.B.A. J.
1215 (1971) (criticizing bar exams); Charles B. Blackmar, Is the Bar Examination an
Anachronism?, 60 A.B.A. J. 1240 (1974) (criticizing bar exams); Leon Green, Why Bar
Examinations?, 33 Nw. U. L. REv. 908 (1939) (questioning usefulness of bar exams);
Erwin N. Griswold, In Praise of Bar Examinations, 60 A.B.A. J. 81 (1974) (supporting
bar exams); Joel Seligman, Why the Bar Exam Should be Abolished, JURIs DR., Aug.-
Sept. 1978, at 48 (criticizing bar exams); George N. Stevens, Diploma Privilege, Bar
Examination or Open Admission, 46 B. EXAMINER 15 (1977) (providing history of bar
exam and analyzing responses to surveys of bar examiners, judges, law school deans and
law professors asking their opinions about the value of bar exams, and ultimately support-
ing bar exams); E. Marshall Thomas, The Bar Examination: Its Function, 32 B. EXAMIN-
ER 69 (1963) (supporting bar exams).
4. See generally Bell, supra note 3; Blackmar, supra note 3; Green, supra note 3; W.
Sherman Rogers, Title VII Preemption of State Bar Examinations: Applicability of Title
VII to State Occupational Licensing Tests, 32 How. LJ. 563 (1989); Seligman, supra note
3.
5. HANDBOOK 2d ed., supra note 1, at 189-90. Today, only Wisconsin has the diplo-
ma privilege. THE NATIONAL CONFERENCE OF BAR EXAMINERS, THE BAR EXAMINERS'
HANDBOOK 10:4 (Stuart Duhl ed., 3d ed. 1991 & Supp. 1993) [hereinafter HANDBOOK 3d
ed.]. Law students who graduate from approved Wisconsin law schools are admitted auto-
matically to the Wisconsin bar. See BAR/BRI BAR REV., BAR/BRI DIG. 47 (Donna M.
Skibbe ed., 1995). Applicants for admission to the Wisconsin bar who graduated from
other law schools must take a Wisconsin bar examination. Id.
6. See Stevens, supra note 3, at 19 (charting the rise and decline of the diploma
privilege from its inception in the 19th century through the early 1970's).
7. See HANDBOOK 2d ed., supra note 1, at 18 (naming the five states that as of
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1193
1980 had diploma privilege); Rogers, supra note 4, at 586 n.137 (indicating that only
Wisconsin retains the diploma privilege).
8. HANDBOOK 2d ed., supra note 1, at 14.
9. Id.
10. Id. at 15.
11. Even in colonial times, courts, especially the highest courts, often would not actu-
ally consider an applicant themselves. Instead, the court would appoint an examining
board to determine which applicants ought to be admitted to practice. Id. at 15-16. Thus,
modem bar examiners may trace their positions to colonial America. Today, bar examiners
in each state are appointed by the judicial branch. For a discussion of the qualifications
and appointments of bar examiners, see HANDBOOK 3d ed., supra note 5, at 70:1-73:2001.
1194 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
dards for legal education varied widely from state to state. In addi-
tion, as shall be discussed infra, where examinations did exist, they
were typically mere formalities, or they could be bypassed simply
by choosing a different path of legal study, such as clerking.'
However, during the Jacksonian era (roughly the 1820s and
1830s), and continuing through the Civil War, standards for bar
admission generally decreased and became far more erratic and
whimsical. During the Jacksonian era, Americans grew increasingly
distrustful of lawyers and felt that admissions practices were elitist
and contrary to the ideals of democracy.' The public saw the law
as primarily an upper class profession that exclusively controlled
entry and favored applicants who were well-connected and who
could easily secure apprenticeships.'s
As a result of the growing distrust of the bar, most admissions
standards disappeared or were greatly reduced to permit virtually
any man to practice law. In 1800, three-fourths of American juris-
dictions (states and territories) required a specifically delineated
period of preparation for law practice, but by 1840, only one-third
of all American jurisdictions had a defined period of preparation
for law practice. 4 Furthermore, by 1860, only about one-fourth of
all jurisdictions had a specified period of law study.' For exam-
ple, in 1851, Indiana's Constitution proclaimed that "'every person
of good moral character, being a voter, shall be entitled to admis-
sion to practice law in all courts of justice."'" 2 Also, in Ohio, to
be admitted to practice an applicant had only to show a certificate
signed by a practicing attorney which stated that the applicant had
"'regularly and attentively studied law."' 27 For a time, New
21. See infra notes 29-31 and accompanying text (discussing the ineffectual nature of
bar exams during the 19th century).
22. See CHROUST, supra note 13, at 165-66 (discussing antebellum efforts to enable lay
persons to practice law); HANDBOOK 2d ed., supra note 1, at 15.
23. For a discussion of the Jacksonian era's dissatisfaction with the "elitist" legal pro-
fession, see CHJOUsT, supra note 13, at 165-66, 171 (describing how fear of creating a
privileged class drove many to seek ways in which to deprofessionalize the bar); ROBERT
STEVENS, LAw ScHOOL: LEGAL EDUCATION IN AMERICA FROM TE 1850's To THE
1980's 10 (1983) (noting the temporary decline of formal educational requirements); Bard
& Bamford, supra note 2, at 395 (citing attacks against the bar as a professional organi-
zation).
24. Bard & Bamford, supra note 2, at 395 n.7.
25. Ia
26. HANDBOOK 2d ed., supra note 1, at 15 (quoting 1851 version of the Indiana Con-
stitution).
27. CHROUST, supra note 13, at 168 (quoting RoscoE POUND, THE LAWYER FROM
ANTIQUITY TO MODERN TaEs 229 (1953)).
1196 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
28. STEVENS, supra note 23, at 9 (noting that despite New Hampshire's liberal re-
quirement, the profession tried to maintain standards by ostracizing "untrained interlopers").
In those states that did not eliminate requirements of legal education, the requirements
were often nominal standards that were easily met. See CHROUST, supra note 13, at 167
(pointing out the inadequacy of both enforcement and administration at the time). For
example, in Massachusetts, in 1836, applicants with or without legal training could go
before the courts to seek admission. Id. If the applicant was of good moral character and
had in fact studied law in a law office for three years the courts were "obliged to admit"
him. Id. Presumably, if the applicant came before the court with fewer than three years of
law study (or none at all), the courts had discretion to admit him. See id. (highlighting
the fact that persons without training could still apply). In addition, it was common at the
time for courts to adopt loose interpretations of what constituted an "apprenticeship,"
"clerkship," or "legal study" in order to admit more applicants. See id. at 167-68.
29. CHROuST, supra note 13, at 168.
30. Id.; see also STEVENS, supra note 23, at 25 ("The bar examination, although re-
quired in all states [by 1860] but Indiana and New Hampshire, was everywhere oral and
normally casual."); Stevens, supra note 3, at 17 (reporting that where oral exams existed
they were often short and farcical, because if an applicant failed he need only look for a
more lenient judge or court-appointed examiner and submit to an even easier test).
31. Seligman, supra note 3, at 48. The following equally vivid example of pre-Civil
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1197
35. Id. at 24 (quoting an article printed in both the Albany Law Journal and the West-
ern Jurist in 1870).
36. STEVENS, supra note 23, at 24.
37. Typically, admissions requirements were higher in the eastern states, and lower in
the South and the West. Id. at 8, 25.
38. John H. Schlegel, Langdell's Legacy or, the Case of the Empty Envelope, 36
STAN. L. REV. 1517, 1520 (1984).
39. Id.
40. Id. at 1520-21; see also STEVENS, supra note 23, at 25 (explaining that a com-
bination of law school, practical apprenticeship and an effective bar examination was
intended to restrict entrance to the bar). It is interesting to note how often legal historians
cite the limit of competition or barrier to entry as a reason for formal legal education.
Given the liberal rules for bar admission prior to Langdell's call for a standard law
school, one surmises that legal professionals desired barriers to entry to make it difficult
for applicants to become attorneys, thereby permitting only those truly dedicated to the
profession and willing to make a long-term commitment to law study to enter. Indeed, if
nearly everyone could become a lawyer, simply because he was of "good moral character"
or a voter over the age of twenty-one, lawyering might have lost its distinction as a
"profession." For a discussion asserting that market barriers to entry are an essential part
of the concept of a "profession," see generally MAGALI SARFATrI LARSON, THE RISE OF
PROFESSIONALISM: A SOCIOLOGICAL ANALYSIS (1977).
41. Schlegel, supra note 38, at 1524.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1199
42. ld.
43. Id.
44. Id.
45. Id.; see also STEvENs, supra note 23, at 24 (noting that in the 1870s some were
concerned that the law had drifted away from its roots as a liberal science and had be-
come a mere trade). Other less important or more difficult to prove reasons may have
contributed to the dominance of Langdell's theory. Langdell's system permitted the en-
hancement of law professors' egos. Under the Socratic method and the requirement of
full-time legal study, law professors retain a great deal of control over a student's educa-
tion, and consequently have much influence over who is eventually admitted to practice.
See Schlegel, supra note 38, at 1524 (attributing the success of the Harvard method to
several possible factors, including its positive effect on the egos of law professors). Also,
Langdell's theory benefited from the common reasoning fallacy of novelty (the idea that
novelty translates into better quality). By comparison, Langdell's model was more novel
than Dwight's. Id.
46. "In 1921 the ABA directed the Council of the Section of Legal Education and
Admissions to the Bar to publish from time to time the names of law schools that com-
ply with its recommended standards. Thus the Council began the practice of 'approving'
or 'accrediting' law schools." Bard & Bamford, supra note 2, at 397 n.23; see also THE
NATIONAL CONFERENCE OF BAR EXAMINERS, THE BAR EXAMINERS' HANDBOOK 43 (Ist
ed. 1968) [hereinafter HANDBOOK 1st ed.] (discussing the history of law school accredita-
tion).
47. In 1924, only 32% of law graduates came from approved or accredited law
schools. By 1965, 92% of law graduates came from approved programs. Bard & Bamford,
supra note 2, at 397. By comparison, in 1978, 95.8% of bar applicants graduated from
approved law schools. HANDBOOK 3d ed., supra note 5, at 72:2003.
1200 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
48. See Bard & Bamford, supra note 2, at 399-400 (arguing that unapproved law
schools have lower standards than and are inferior to approved law schools).
49. Today, a great many supporters of bar exams cite the exam as a means to main-
tain high standards among the ABA-approved law schools. See, e.g., HANDBOOK 3d ed.,
supra note 5, at 74:4-74:5; Griswold, supra note 3, at 81; Stevens, supra note 3, at
23-24; Thomas, supra note 3, at 70.
50. STEVENS, supra note 23, at 114.
51. Stevens, supra note 3, at 21; see also STEVENS, supra note 23, at 25-26 (explain-
ing that the bar exam was intended to standardize admissions requirements and was con-
sidered egalitarian in the sense that its mission was to equalize the disparate admissions
requirements in various regions around the country).
52. The first written bar exam predated the Civil War and was instituted in 1855 by
Massachusetts. However, on a broad scale, written bar examinations remained unique until
long after the Civil War. Stevens, supra note 3, at 21.
53. See supra notes 29-31 and accompanying text.
54. STEVENS, supra note 23, at 25.
55. Stevens, supra note 3, at 21.
56. Id.
57. See supra note 5 (describing a process whereby graduation from certain law
schools results in automatic admission to the bar).
58. STEVENS, supra note 23, at 24 (noting that "[t]he vast majority of the legal pro-
fession until the turn of the century still experienced only on-the-job legal education").
Law office study may still account for an applicant's entire legal education in California,
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1201
Vermont, Virginia, and Washington, and law office study may account for part of an
applicant's legal education in Maine, New York, and Wyoming. HANDBOOK 3d ed., supra
note 5, at 72:2001-72:2002.
59. See Stevens, supra note 3, at 18-19 (arguing that diploma privilege was a means
for law schools' economic survival).
60. See id. (tabulating data concerning the number of states with the diploma privilege
at the end of each decade from 1840 to 1970).
61. See supra note 6 and accompanying text (addressing the modern decline of the
diploma privilege).
62. HANDBOOK 2d ed., supra note 1, at 189.
63. Id.at 190. The ABA and National Conference of Bar Examiners has retained the
1921 ABA statement and 1971 reaffirmation in its most recent justification for the bar
exam. See HANDBOOK 3d ed., supra note 5, at 74:1.
1202 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
64. Due to greater mobility of today's society this argument could be extended to in-
clude the impracticality of having the privilege in only some states but not in others.
65. HANDBOOK 2d ed., supra note 1, at 20-21.
66. See supra note 5 (summarizing Wisconsin's version of the diploma privilege).
67. See THE LINCOLN READER 87-94 (Paul M. Angle ed., 1942) (discussing Lincoln's
days studying law and his admission to practice).
68. See supra note 58 (listing states which continue to recognize on-the-job training as
an acceptable form of legal education).
69. HANDBOOK 3d ed., supra note 5, at 72:1001. The requirement that an applicant
have completed only "three-fourths" of the baccalaureate degree is somewhat misleading.
Only about 10% of ABA-approved law schools will accept students who have completed
only three-fourths of their undergraduate bachelor's degree. Therefore, the vast majority of
applicants actually will have completed and earned their baccalaureate degrees before
beginning law study. Id.
70. See id. (explaining that the applicant need not actually earn or receive the law
degree before moving on to the next step in the admissions process, because some law
schools do not award a diploma until after applicants sit for the bar exam).
71. HANDBOOK 3d ed., supra note 5, at 72:2001.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1203
78. Thomas, supra note 3, at 69; see also HANDBOOK 3d ed., supra note 5, at
74:2001-74:2002 (relying on Thomas' analysis to explain the purpose of the bar exam);
Bruce Hamilton, Eliminate the Bar Exam!, ARIZ. Arr'Y, Aug.-Sept. 1991, at 36, 37 (argu-
ing that "[b]ar exams are designed to synthesize the law into a cohesive whole and to
test the examinees' ability to address complex fact situations with time limitations, pres-
sure, competition and the need for a sound solution-not unlike the daily practice of
law").
79. But see Philip C. Kissam, Law School Examinations, 42 VAND. L. REV. 433
(1989) (arguing that typical blue book essay exams or any similar high-pressure classroom
exam, like those given in law school, do not always test the examinee's ability to analyze
legal problems, show his or her knowledge of the law, and work out solutions to the
problems presented in a lawyer-like fashion). Kissam supports a more expanded testing
process such as research papers or lengthy take-home or library exams to truly evaluate a
test-takers's ability. Id. at 493-502. If Kissam is correct, his findings may cast doubt on
the ability of bar exams, as they now are administered, to succeed in their "obvious pur-
pose."
80. Thomas, supra note 3, at 69-70 (admitting that law schools have already taught the
same skills tested by the bar exam).
81. In the area of support for the bar exam, E. Marshall Thomas, George Neff
19951 THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1205
both the common and esoteric justifications for the bar exam.
A. Justification: The Bar Exam Weeds Out Incompetent
Applicants
Supporters of the bar exam cite consumer protection as perhaps
the most important bar exam function. Since all attorneys owe a
duty of providing competent legal advice to their clients, and legal
educators owe at least some duty to instill that competence, there
is no question that mechanisms should exist to protect the public
from incompetent practitioners. Some supporters state the consumer
protection justification in terms of testing a "minimum level of
competency" or determining which applicants have the bare neces-
sity of skills to be a lawyer.' Others state their position in terms
of testing for incompetency as opposed to competency.83 No mat-
Stevens, Stephen P. Klein, and former Harvard Law School dean Erwin N. Griswold lead
the cause. Because these scholars have both written extensively on the subject and be-
cause the National Conference of Bar Examiners has relied for years on their reasoning in
defense of bar exams, I have taken most of the justifications for the bar exam from their
works. For the National Conference of Bar Examiners' reliance on the works of Thomas,
George Stevens, Griswold, and Klein, see HANDBOOK 1st ed., supra note 46, at 127;
HANDBOOK 2d ed., supra note 1, at 190-98; HANDBOOK 3d ed., supra note 5, at 10:4-
10:5, 74:1-74:2005.
82. See HANDBOOK 2d ed., supra note 1, at 190-92 (stating that the bar exam is still
important in protecting the public from incompetent practicioners); see also Malcolm Getz
et al., Competition at the Bar: The Correlation Between the Bar Examination Pass Rate
and the Profitability of Practice, 67 VA. L. REV. 863, 880-81 & n.39 (1981) (arguing
that despite the fact the bar exam may be an unsatisfactory competency measure, it still
performs a valuable service to consumers of legal advice who have no mechanism of de-
termining whether an attorney is competent); Myrna Oliver, Testing the Bar Exam, CAL.
LAw., June 1985, at 53, 53 (quoting the California Committee of Bar Examiners' main
concern as expressed by its chairperson: "[O]ur paramount interest is protecting the public
from people who can't demonstrate a minimum level of skills"); Stevens, supra note 3,
at 34 (stating that graduation from law school alone does not guarantee a minimum level
of competency); Thomas, supra note 3, at 69, 73 (claiming that the bar exam serves the
function of determining who is eligible to practice).
83. See Oliver, supra note 82, at 55 (reporting the opinion of Stephen P. Klein, a
noted analyst at the Rand Corporation who has written extensively on what abilities writ-
ten bar exams test and their usefulness as a screening device). Klein argues that the "'bar
exam is not designed to measure everything a person needs to know to be a lawyer . . .
. The things that it does measure are relevant to the practice of law."' Id. As support,
Klein offers two studies which indicated that students who scored high on the traditional
bar exam also scored high on new "performance tests," which evaluate examinees' abil-
ities to interview and complete "other tasks common in law practice." Id. The implication
is that the bar exam need not test for other lawyering skills, because the applicants who
perform well on the traditional bar exam would also perform well on the performance
tests. However, assuming these performance tests are adequate means of evaluating com-
mon lawyering skills, Klein fails to offer data for applicants who do not score high on
the traditional bar exam. If the marginal or poor bar examinees scored well on the perfor-
1206 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
89. 540 F.2d 744 (4th Cir. 1976), cert. denied, 435 U.S. 968 (1978).
90. Id.
91. 42 U.S.C. § 2000e (1982); see also Richardson, 540 F.2d at 746 (stating that
under a Title VII standard, job-relatedness must be predictive of success in the field).
92. Richardson, 540 F.2d at 746 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405,
431 (1975)).
93. In declining to decide the Title VII issue of sufficient job relatedness, the court in-
stead decided that the South Carolina bar exam complied with the Equal Protection Clause
of the Fourteenth Amendment, in that proof of disparate racial impact does not invoke the
equivalent of Title VII job relatedness standards upon the bar exam. Id. at 747. Thus, the
bar exam, to remain constitutional, need only comply with the lesser standard of "rational
relationship" to the job of lawyering. Id. at 748; see also HANDBOOK 2d ed., supra note
1, at 42 (discussing constitutionality of the bar exam under Richardson).
94. Richardson, 540 F.2d at 749-50. The bar examiners supported their contentions that
their exam questions tested for minimum lawyer competency because 1) each examiner is
a successful practicing attorney in South Carolina, who from "observation and experience,
understands the skills necessary to practice law competently," 2) each examiner reviewed
sample bar exam questions prepared by the National Council of Bar Examiners, and 3)
each examiner designed questions to determine whether applicants possess minimum legal
competence. Id. at 748.
95. For the argument that Title VII of the Civil Rights Act should govern state li-
censing agencies, including bar examiners, see Rogers, supra note 4. Rogers concludes
that if Title VII did apply, bar exams would be unconstitutional. Id. at 624.
96. For additional support that the bar exam does not prepare applicants for law prac-
1208 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
tice or test for lawyering skills, see generally Baird, supra note 3. The Baird study "at-
tempted to determine the activities of the legally trained, the use to which they put their
legal skills, and their views of the utility of various aspects of their legal training." Id. at
264. Baird surveyed a sample of 1600 legally-trained people from six different law
schools at three different stages in their careers (beginners, mid-career professionals, and
advanced "veteran" professionals). The portion of Baird's study relevant to this Note is
his survey of the skills legally trained people employ in their work and their perception
of the value of their legal training in developing those skills. Id. at 268-83. Except for
knowledge of statutory law, Baird found that his subjects emphasized the usefulness of
general skills over the usefulness of specific areas of legal knowledge. Id. at 292. Six
skills emerged as important from the Baird survey: 1) counseling, 2) interviewing clients,
3) directing work of others, 4) organizing flow of work (Baird referred to skills 3 & 4 as
"office practice"), 5) interviewing witnesses, and 6) negotiating. Id. at 293. Those sur-
veyed felt that their legal educations had left them ill-prepared to use these skills. Id. The
results of the Baird study imply that a mechanism intended to test minimum competency
to practice law which emphasizes substantive knowledge, and to a lesser extent legal
reasoning and communication, may miss the mark, because legally trained professionals
have identified those areas of their legal training to be less useful in their roles as legal
professionals than the areas the bar exam does not test. Id.
97. See AMERicAN BAR ASSOCIATION, LEGAL EDUCATION AND PROFESSIONAL DEVEL-
OPMENT-AN EDUCATIONAL CONTINUUM: REPORT OF THE TASK FORCE ON LAW SCHOOLS
AND THE PROFESSION: NARROWING THE GAP 278 (1992) [hereinafter MACCRATE REPORT].
This report is named for the chairperson of the Task Force, Robert MacCrate. The Task
Force endeavored to research and describe the "breadth and complexities of the legal
profession," and performed an "in-depth study of the full range of skills and values nec-
essary for a lawyer." Id. at xi.
98. Id. at 3-8, 123.
99. Id. at 123-222. The Task Force noted that it would be impossible for any group to
write a comprehensive statement of the skills and values necessary for a lawyer with
which all members of the profession would agree. Id. at 123-24. However, in endeavoring
to compile such a statement, the Task Force hoped to challenge the profession to study
what skills are central to the role and functioning of lawyers in our society. Id. at 124.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1209
100. Id. at 151-57, 172-76. The Task Force noted also that substantive knowledge of
legal rules and principles, is also necessary to be a competent lawyer. Id. at 125. Howev-
er, the Task Force does not consider legal knowledge to be a skill, rather it is something
all attorneys must possess before giving legal advice. Id. The lawyering skills analyzed by
the Task Force are means to acquire legal knowledge.
101. Id. at 141-51, 157-72, 176-207.
102. See MACCRATE REPORT, supra note 97, at 124-25 (stating that a range of both
knowledge and skill is necessary to adequately represent a client).
103. Id. at 125.
104. Id. Thus, minimum competency will often be provided by a "team" of lawyers, all
of whom maintain different, yet complementary, fundamental lawyering skills.
105. Id. at 132-33.
106. See id.; see also id. at 278 (explaining the wide array of lawyering skills that are
not tested by the bar exam).
1210 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
107. Bell, supra note 3, at 1216; see also Seligman, supra note 3, at 49 (claiming that
the bar exam demands only that examinees pinpoint issues they've been taught to spot by
"cram courses"). The worst offender in terms of testing memory is the Multistate Bar
Examination (MBE) portion of the exam which consists entirely of multiple-choice ques-
tions. The MBE requires no legal reasoning, but rather requires only rote memorization of
bar review outlines. Id. at 50. Thus, the MBE may not be a true test of lawyering ability
because lawyering involves
the assimilation of facts, research of the law, development of legal issues and
strategies, segregating relevant from irrelevant, and helpful from unhelpful mate-
rials, and the exercise of judgment in drawing a conclusion. Few of these pro-
cesses [are] thought to be well-tested by . . . the MBE, which depends for the
most part on recognition of accurate or inaccurate discrete statements of law.
Jeffrey M. Feldman & Margie M. Neille, Certifying Professional Competence: The Alaska
Experiment, 52 B. EXAMINER 4, 6 (1983) (quoting Armando M. Menocal HlI, explaining
why performance testing of actual lawyering skills should be part of the bar exam). In
addition, the high value bar exams place on memorization of legal rules or principles may
have serious consequences for legal education in general. See infra notes 146-49 and
accompanying text.
108. Bell, supra note 3, at 1216. Judge Edward F. Bell stated that no attorney "will go
into a trial depending on his memory to carry him through." Id.
109. In analyzing his experience with the Massachusetts bar exam, Joel Seligman argues
that the bar exam emphasizes only simple, mechanized rules "that any competent attorney
could-and would, if necessary-look up in a library in a matter of minutes." Seligman,
supra note 3, at 50.
110. In addition, regardless of what "skills" the bar exam actually tests, "non-academic"
skills are undervalued by the bar exam. Research by the ABA Task Force on Professional
Competence found that many applicants who are strong in "non-academic" lawyering
skills, such as courtroom advocacy or negotiation, fail bar exams. Graeme Browning, Fail
the Bar, Sue the Examiners, 69 A.B.A. J. 1656, 1660 (1983). Also, the bar exam does
nothing to foster "lawyering skills" such as those identified in the MacCrate Report.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1211
MACCRATE REPORT, supra note 97, at 277-78 (finding that bar examiners intend to test
applicants' legal analysis and communication skills, but in reality test primarily for knowl-
edge of legal rules); see also id. at 135-222 (explaining and analyzing fundamental law-
yering skills and values). To be sure, the answer to correcting the undervaluation of non-
academic lawyering skills is not necessarily the elimination of the bar exam. After all, the
bar exam might simply be changed to test non-academic skills. However, due to the bar
exam's poor job in evaluating students' "academic" skills and the existence of better
means to test both academic and non-academic lawyering skills, the bar exam is an infe-
rior means of determining competency. For a proposed alternative to the bar exam, see
discussion infra part V.
111. See, e.g., Stevens, supra note 3, at 27-28 (stating that many supporters of the bar
exam believe it keeps students "on their toes"); Thomas, supra note 3, at 70 (claiming
that the bar exam is a "healthy educational stimulant" for law students).
112. See, e.g., Bard & Bamford, supra note 2, at 408 (stating that the most important
effect of the bar exam has been the improvement or extermination of low-quality law
schools); Griswold, supra note 3, at 81 (stating that bar exams encourage schools to do
the best job they can); Stevens, supra note 3, at 23-24 (stating that the bar exam is the
only fair way to check the adequacy of legal education); Thomas, supra note 3, at 70
(arguing that the bar exam stimulates law school faculty to maintain high standards).
113. Griswold, supra note 3, at 83.
114. See JAMES P. QUIRK, INTERMEDIATE MICROECONOMICS 4 (3d ed. 1987) (explaining
the history and application of Gresham's Law).
1212 CASE WESTERN RESERVE LAW REVIEW (Vol. 45:1191
120. Presumably, this comprehensive review takes place both while the applicant studies
for the bar exam and while taking it. For authors who support the bar exam on grounds
of providing a comprehensive review, see, for example, Bard & Bamford, supra note 2,
at 408; Griswold, supra note 3, at 81 (stating that the diploma privilege allows students
to graduate and practice law without ever showing, in a comprehensive way, that he or
she is qualified); Hamilton, supra note 78, at 37; Stevens, supra note 3, at 24, 27 (argu-
ing that this comprehensive review is also an opportunity for students to demonstrate a
"synthesis" of law, and that testing for the ability to synthesize the law alone justifies the
bar exam); Thomas, supra note 3, at 70 (stating that the bar provides a comprehensive
exam combining various areas of law, whereas law school exams deal with specific areas
of law).
121. See MACCRATE REPORT, supra note 97, at 279 (discussing the false premise that
one can, and should, know the law in all the many subject areas tested by the bar ex-
am); see also supra notes 107-10 and accompanying text.
122. See generally TAXONOMY OF EDUCATIONAL OBJECTIvE HANDBOOK Ik COGNITIVE
DoMAIN (Benjamin S. Bloom ed., 1956). By "synthesis", supporters of the bar exam are
probably referring to what Benjamin Bloom considered one of the highest cognitive skills.
Id. at 185 (explaining what has become known as "Bloom's Taxonomy of Cognitive
Skills"). Only "evaluation" is a higher cognitive skill. Id. Evaluation means being able to
assess the worth or value of an argument. Id. Synthesis means being able to see how
concepts relate. lId at 162. If the principle cognitive skill required to conquer the bar
exam is memorization, applicants will primarily demonstrate their recollection of legal
rules and principles. For example, bar review courses teach applicants that whenever the
facts are X, rle Y applies. All the applicant must do is plug rule Y into the facts X and
the answer presents itself. Thus, there is no opportunity for the applicant to show, for
example, how procedural issues will affect the substantive outcome, or how the procedural
issues present constitutional questions, or how policies and politics might influence "the
answer" just as much as the legal rule. Because the bar exam is usually a series of thir-
ty-minute questions which the applicant is to identify as a "torts question," a "contracts
question," or "administrative law problem," the bar exam cannot permit applicants to dem-
onstrate a "synthesis" of the law.
1214 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
123. Bar supporters often respond to criticisms such as this with the interesting retort
that lawyers sometimes must rely solely on the information in their heads, as in respond-
ing to an opponent's evidence objection or answering a judge's courtroom challenge.
However, such challenges are typically anticipated far in advance of a court proceeding
when the attorney has a chance to carefully research and prepare the case. In addition,
maneuvering through courtroom procedure and responding to judges and opponents are
skills that the bar exam is probably not best suited to test. Indeed, the bar exam presents
the examinee with time pressures, but it remains a written exercise, whereas responding to
judges or opponents is an oral exercise. Skills in oral argument, trial advocacy, and gen-
eral people skills are better taught through on-the-job legal experience and not a memory
test. See MACCRATE REPORT, supra note 97, at 299-301 (reporting that more and more
law firms have on-the-job in-house training programs for their new lawyers to teach them
practical lawyering skills, like trial advocacy, because firms have concluded that these
skills are best taught when new attorneys begin practice).
124. Griswold, supra note 3, at 82.
125. See id. (asking what is wrong with competition).
126. Id.
127. The fact that most people will probably agree with the general benefits of competi-
tion makes Griswold's argument seem like a red herring. The issue is not whether com-
petition is good, but rather whether the bar exam is a good mechanism to invite compe-
tition.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1215
130. Griswold, supra note 3, at 82-83. Essentially, Dean Griswold argues that law
school has become easy: "There is reason to fear that standards in law schools have
declined in recent years, and they might have declined further but for the sanction of the
bar examinations. Bar examinations may be the only serious hurdle that the student has to
overcome." Id. at 82.
131. In 1965, there were 136 ABA-approved law schools, but by 1990 there were 175.
MACCRATE REPORT, supra note 97, at 18. However, in 1965-66 there were 56,510 J.D.
enrollments, while in 1990-91 there were 129,580. Id. Thus, J.D. enrollments more than
doubled while the number of law schools to handle the massive influx of students in-
creased by only about 29%. See id. at 13-18 (discussing expansion in the legal profes-
sion). In addition, law school applications have reached record highs in the past several
years. Ken Myers, Applicants Declined Slightly From Past Record High Levels, NAT'L
LJ., Oct. 12, 1992, at 4, 4 [hereinafter Meyers, Applicants Declined] (reporting that al-
though the number of applicants declined "'a tiny fraction"' for the first time in the pre-
vious several years, the number of applications to law schools increased). Despite the
slight drop in applicants, there were still 92,500 applicants, more than two for every
opening at America's ABA-approved law schools. Id.; see also Ken Myers, Job Squeeze
Seems to Take Toll on Number of 1992 Applicants, NAT'L LJ., Apr. 6, 1992, at 4, 4
[hereinafter Meyers, Job Squeeze] (indicating the number of law school openings in ABA-
approved law schools as 44,000). The deputy corporate counsel for the Law School Ad-
mission Service reports that "[c]ompetition is fiercer than it has been and that may dis-
courage some people from applying." Myers, Applicants Declined, supra, at 4. The stiff
competition to get into law school and recent recession are the most likely reasons why
the 1992 application figures did not match the record 94,000 applications in 1991-92. Id.
132. As mentioned earlier, there are many hurdles students must pass over before being
admitted to practice. They include the LSAT, acceptance to law school during a time of
unprecedented competition, law school assignments and examinations, and in many law
schools a substantial writing requirement. These are all serious hurdles facing law stu-
dents. See also supra note 131 (discussing fierce competition to get into law school).
In a related argument, Dean Griswold asserts that because law practice is tough the
admissions process should be tough. See Griswold, supra note 3, at 83. Presumably, the
admissions process would be easy if there were no bar exam. For argument's sake, as-
sume Dean Griswold is correct. Why not have two bar exams, then? Perhaps there should
also be a bar exam after one and a half years of law school to keep the admissions
process tough throughout the applicant's training years. The dean's argument is similar to
the "rite of passage" argument. Evaluation of the "rite of passage" argument, discussed
supra note 129 and accompanying text, is equally applicable to Dean Griswold's tough
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1217
tion of the practicing bar's fear is a belief that legal educators are
too isolated from law practice to know what it takes to practice
law. ' 6 To be sure, the admissions process should involve the
practicing bar, because they are in a better position than academics
to observe and evaluate an applicant's day-to-day practice skills.
The reason to involve practicing attorneys is not because academics
are too isolated or incapable of judging quality, but because law
school training is too short and does little to bridge the gap be-
tween law theory and law practice. In essence, spending a semester
lecturing law students and interacting minimally with them is insuf-
ficient contact to evaluate prospective lawyers. However, the three-
day memory test that is the bar exam is also insufficient and does
little or nothing to add to the admissions process.'3 7
G. Justification: The Bar Exam is Necessary to Ensure that
Applicants Are Familiarwith Local Law
Bar exam supporters fear that applicants do not learn local law
in law school, because local law is not taught, or students attend
school out of state. Therefore, they must be tested on it during the
bar exam. 3 Once again, if lawyers were not allowed to use the
library and had to rely on knowledge solely in their heads, this
justification might have merit. Any practicing attorney, even an old
hand who has been practicing in a particular state for a generation
ness for the practice of law to law teachers, many of whom have had little or no experi-
ence in law practice. Id. These comments help indicate why legal educators should
...
not have complete control over the admissions process, but they also offer little insight as
to why legal practitioners should retain complete control over the ultimate admissions
obstacle, namely the bar exam. If the practitioners' fears are essentially that legal acade-
mia is too isolated from everyday practice to assess applicants' lawyering skills, then one
might expect the bar exam to assess skills with which legal academics have little experi-
ence. However, since the bar exam primarily tests knowledge of legal rules, and to a
lesser extent "legal reasoning" and communication skills, there seems no compelling rea-
son to fear academics, for they are well-equipped to test exactly what the bar exam tests.
If, however, the bar exam tested more practical lawyering skills, such as those identified
in the MacCrate Report, there would be greater justification for the practitioners' com-
ments quoted above.
136. See supra note 134 and accompanying text. This is a curious argument because it
is at best questionable whether the bar exam tests what it takes to be a lawyer. There-
fore, it may not matter whether the admitting authority is or is not isolated from law
practice.
137. Indeed, if the bar exam is the best that non-academics can offer the admissions
process, then they have a responsibility to better explain why they must have the ultimate
voice in deciding who becomes an attorney.
138. See, e.g., Stevens, supra note 3, at 28 (presenting views of many bar supporters
who feel that the bar exam is a necessary vehicle to test applicants on local law).
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1219
will reacquaint him or herself with the local law before arguing a
case or rendering an opinion.'39 In addition, other incentives be-
sides a bar exam exist to encourage knowledge of local law. For
example, an applicant's own interest to succeed in his or her prac-
tice would motivate the applicant to learn local law."4
In deciding the merits of justifying bar exams because they
encourage knowledge of local law, it is important to ask why
many states admit practicing attorneys to their bars from other
states, without requiring them to pass exams on local law. 4'
Typically, the only states which do not offer such reciprocity for
attorneys seeking admission from out-of-state are retirement states,
such as Florida. 42 This may suggest that the retirement states are
more interested in restricting competition than ensuring knowledge
of local law.
H. General Objections to the Bar Exam
The bar exam may be objectionable on grounds that are not
related to the justifications for it. For years, both legal educators
and practitioners have opined that the bar exam discriminates
against minorities. Evidence of such discrimination usually comes
from the fact that a disproportionately high number of African and
Latin American applicants fail the bar exam. 43 However, if in-
deed the bar exam does discriminate against minorities, the natural
139. See supra notes 108-09 and accompanying text (indicating that attorneys do not
rely solely on their accumulated knowledge).
140. Blackmar, supra note 3, at 1244.
141. See HANDBOOK 3d ed., supra note 5, at 74:101. "In the great majority of states, a
migrant attorney [a practicing attorney from another state] may be admitted on his foreign
license without taking an examination provided that he has fulfilled certain requirements
of the admitting state which pertain to the length of time the foreign attorney has 'prac-
ticed law' in the state of his prior licensure." Id.
142. See BAR/BRI DIG., supra note 5, at 9-47 (listing requirements for admission into
each state's bar).
143. See Bell, supra note 3, at 1216-18 (opposing bar exams because of discrimination,
noting that a disproportionate number of blacks fail each exam); Maurice Emsellem, Ra-
cial and Ethnic Barriers to the Legal Profession: The Case Against the Bar Examination,
N.Y. ST. BJ., Apr. 1989, at 42 (objecting to the bar exam because it imposes yet anoth-
er barrier to the legal profession to minorities); Dannye Holley & Thomas Kleven, Mi-
norities and the Legal Profession: Current Platitudes, Current Barriers, 12 T. MARSHALL
L. REV. 299, 333 (1987) (noting that "the bar exam is a substantial barrier to minority
entry into the legal profession"); Rogers, supra note 4, at 570 (noting that tests which
"disproportionately exclude Blacks in a significantly discriminatory pattern" are forbidden
under Title VII). Contra Stephen P. Klein, Bar Examinations: Ignoring the Thermometer
Does Not Change the Temperature, 'N.Y. ST. BJ., Oct 1989, at 28, 30 (arguing that a
disparity in passage along racial lines does not mean that the bar exam is discriminatory).
1220 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
144. Despite years of efforts to reform the bar exam, some argue that discrimination
persists. See Bell, supra note 3, at 1216-18 (arguing, in 1971, that the bar exam discrimi-
nated against black applicants, because the only explanation for disproportionate eventual
bar passage rates is race); see also Emsellem, supra note 144, at 43 (positing that after
years of discriminating against minority applicants, the bar exam continues to discrimi-
nate); Holley & Kleven, supra note 144, at 335-36 (pointing out continuing discrimination
despite efforts to reform the test). The alleged discriminatory effects of the bar exam are
beyond the scope of this Note. Since the bar exam continues its reign as the ultimate
obstacle to bar admission, the reader may have interest in exploring whether the bar exam
unfairly prevents minorities from entering legal practice. For that exploration the reader
may wish to consult the titles referenced supra notes 143-45.
145. See supra note 122 and accompanying text.
146. In addition, success on the bar exam depends on understanding the particular for-
mat, grading standards, and difficulty of the bar exam in the applicant's jurisdiction. SMH
BAR REVIEW, BAR ExAM JOURNAL 1994 BAR EXAM AND COURSE INFORMATION 1 (1993)
[hereinafter SMH BAR REvIEw]. Consequently, bar review courses teach bar applicants
how to answer exam questions. Joanne C. Naiman, Spending Money to Relieve Bar Exam
Jitters, N.J. L., Thursday, June 26, 1986, at 7, 7. The operator of a New Jersey bar
review course, Joseph L. Marino, explains that the bar reviewers can "second-guess" the
bar examiners. Id. Because each question is made up by bar examiners with particular
personalities and grading biases, the review course administrators study the bar examiners
to learn how bar applicants should write essay answers to please the bar examiners. Id. at
7, 31.
147. See supra notes 112-19 and accompanying text (arguing that the bar exam serves
no practical use as a check on law schools).
148. See supra notes 49-50 and accompanying text.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1221
149. See Blackmar, supra note 3, at 1241; Seligman, supra note 3, at 55 (noting the
high costs of the bar exam, bar review courses, and the cost of foregoing two months'
salary). Paul Reidinger, in reporting that about half of practicing attorneys think that the
bar exam does not measure legal competence, sympathizes with law students preparing for
the bar exam by musing that, "[i]t's summertime, and the living is easy--except for re-
cent law school graduates who will be taking their bar exams before the end of July.
They face weeks of grueling preparatory courses before undergoing a test whose relevance
to the practice of law is arguable." Paul Reidinger, Bar Exam Blues, A.B.A. J., July 1,
1987, at 34, 34. Bar applicants endure a variety of costs and anxieties while taking the
bar exam. Most recent law graduates maintain a sense that the bar examination is harder
to pass these days, and many graduates understand that the path to becoming a lawyer is
a costly investment. Naiman, supra note 146, at 7. As a result, bar applicants feel that
they must pass the bar exam, and they are willing to spend great sums to do it. Id. A
typical bar review course costs over $1000. See, e.g., SMH BAR RBviEw, supra note 146,
at 9-31 (providing cost information for bar review courses for several states). In addition,
more and more students purchase specialized "supplemental review courses" which inten-
sively train students in such areas as the Multistate Bar Examination (MBE) or essay
writing techniques. Id. In 1986, the supplemental review courses cost as much as $295.
Id. Of course, the bar exam itself presents applicants with an additional expense. For
example, in California, law students applying before deadlines for the 1994 bar exam will
pay a total of $645 ($55 student registration fee, $325 examination fee for general appli-
cants, and $265 fee for an Application for Determination of Moral Character). BAR/BRI
DIG., supra note 5, at 12. In Ohio, timely applicants will pay a total of $155 ($30 stu-
dent registration fee, if exam applied for by "December 1st following completion of one
third of the credit hours required for law school graduation," and $125 general exam fee).
Id.at 37. In most states there is a late fee if applications arrive after a certain date
which usually falls in the applicant's second year of law school. See id. at 9-47 (provid-
ing cost information for bar exams in all 50 states and Washington, D.C.). In Ohio, for
instance, the late fee is $100. Id. at 37. Therefore, if law students have not decided
where they will practice by their third semester of law school, they will probably be
assessed a late fee.
1222 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
150. England and Wales share a common admissions process. G.S.A. Wheatcroft, The
Education and Training of the Practising Lawyer in England, 30 B. EXAMINER 3, 3
(1961).
151. Id. at 5-7; see also Gary Scanlan, A Brief History of the Legal Profession, in THE
IVANHOE/BLACKSTONE GUIDE TO THE LEGAL PROFESSION 1990 3-6 (Jonathan Grosvenor
ed., 1990) (explaining basic concepts of the British legal profession).
152. Richard Ramsay, Routes into the Profession, in THE IVANHOE/BLACKSTONE GUIDE
TO THE LEGAL PROFESSION, supra note 151, at 45.
153. Id. at 45-46.
154. Wheatcroft, supra note 150, at 10-11.
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1223
165. See supra notes 155-57 and accompanying text (discussing the CPE).
166. See Halpem, supra note 164, at 159-61.
167. Id. at 159.
168. Id. at 159-60.
169. Id.
170. Id. at 165-67.
171. Halpern, supra note 164, at 169-70.
172. Id. at 169.
173. Id. at 166-67.
174. See generally David Latham, Pupillage and the Practical Training, in THE
IVANHOE/BLACKSTONE GUIDE TO THE LEGAL PROFESSION, supra note 151, at 171 (ex-
plaining the pupillage stage of barrister training).
175. Id. at 172.
19951 THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1225
certificate. Now the student may advocate on his or her own behalf
without the need for the Master's close supervision. After this
second six months, if the pupil has performed adequately, he or
she 7gets
6
a full practicing certificate and is now officially a barris-
ter.
B. Canada
In Canada there is no barrister/solicitor distinction. A Canadian
lawyer is both a barrister and solicitor."7 Despite Canada's histor-
ic ties to Britain and France, Canada's pattern of legal education
closely follows America's, with a significant departure following
law school. 7 Canadian legal education philosophy has been de-
scribed as follows:
The [law school] curriculum was designed to give students
three years of thorough academic grounding in the law.
The guiding spirit was a wish to impart a critical under-
standing of legal institutions, and the scope and purpose of
legal rules, rather than simply a training for day-to-day
practice. The university did not claim to teach everything
the law student would need to know. Many pieces of prac-
tical knowledge, it was considered, could best be imparted
outside the university, and this duty was left to the pro-
fession. 79
When Canadian lawyers are eligible to practice law they are
"called to the bar" or said to be part of the Law Society of a
particular province.' Thus, for example, a Toronto applicant
called to the bar would become a member of the Ontario Legal
Society. To be called to the bar, a student must earn a Bachelor's
Degree at a Canadian college.'' Usually this is a four-year de-
gree, but some law schools will admit a student with two years or
less of undergraduate training.' Then an applicant must graduate
176. Id.
177. See FREDERICK B. SUSSMAN, THE LAW IN CANADA 45 (1976) (explaining the bar
admissions process in Canada).
178. See S.M. WADDAMS, INTRODUCTION TO THE STUDY OF LAW 26 (1983) (noting
that while Canada has modeled its law school after America's schools, it has added a
practical training component to legal education).
179. Id. at 26.
180. GERALD L. GALL, THE CANADIAN LEGAL SYSTEM 186-87 (1977).
181. Id.
182. Id. at 186.
1226 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
183. Id.
184. Id. at 187; see also SUSSMAN, supra note 177, at 46 (discussing Canada's bar
admission course).
185. See SUSSMAN, supra note 177, at 46.
186. WADDAMS, supra note 178, at 26-27.
187. GALL, supra note 180, at 187. Recently, The Ontario Law Society has changed its
bar admissions course to include "one month of Law Society instruction prior to the com-
mencement of articles, one year of articles of clerkship, and a further three months of
Law Society instruction thereafter." Id. at 411.
188. See MARK NiCHOLLS Er AL., LEGAL STUDIES FOR SOUTH AUSTRALIA 140-41
(1989) (explaining Australia's barrister/solicitor distinction).
189. Id. In South Australia and a few of the smaller states, there is a "fused profes-
sion," meaning there is no distinction between barristers and solicitors. Id. at 141. In
general, customers seeking legal representation in Australia may not directly contact barris-
ters. Id. Instead, customers must first hire a solicitor, and then if a case requires either
the legal opinion or court case presentation of a barrister, the solicitor, not the customer,
would hire the barrister. Id. In most Australian states, solicitors may present court cases
in the lower courts. Thus, solicitors need not hire barristers each time the former tries a
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1227
V. PROPOSED ALTERNATIVES
204. See, e.g., supra notes 84-88, 111 and accompanying text.
205. See, e.g., supra notes 84-110, 112-23, 128-43 and accompanying text.
206. See supra notes 5, 57-62, 134-37 (discussing the history and modem incarnations
of the diploma privilege).
207. Recall that Canadian law students need not take a bar exam. However, upon grad-
uation from a Canadian law school, they are not automatically admitted to the bar. They
must then take a bar admissions course consisting of a period of clerkship and class work
covering practical lawyering skills. See supra notes 185-88 and accompanying text.
208. See supra notes 49-50 and accompanying text.
209. See supra notes 111-19 and accompanying text (arguing that other means exist to
promote high standards in law schools besides the bar exam). See supra notes 131-32 and
accompanying text (arguing that competition to get into law school is fierce). In addition,
the bar exam may actually lower standards in law schools. See supra notes 146-49 and
accompanying text.
210. See Stevens, supra note 3, at 16, 31-32 (listing a variety of reasons why mandato-
ry clerkships have little support). Stevens notes the following problems with mandatory
1230 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
A. A New Alternative
It seems that American legal education has come nearly full
circle. In colonial America and through the Civil War, legal educa-
tion consisted almost entirely of practical skills acquired while
studying with a practitioner.214 These days, legal education is
highly theoretical and conducted almost entirely in a classroom.
Although the practicing bar has the ultimate say over who enters
the profession, it has almost no role in legal education. The bar
exam as it exists today does nothing to further a student's educa-
tion or thinking ability.21 Instead, the exam has assumed the role
of rite of passage that gives the profession and the public a false
sense that it performs a valuable function.
Therefore, a proposed alternative that combines the best of the
diploma privilege and a mandatory clerkship may be the best alter-
native to the bar exam. By the best of the diploma privilege, I
mean resurrecting faith in the law schools and providing them with
ample opportunity to evaluate law students, so that graduating from
law school becomes even more of an achievement and preparation
for practice than it is now. With the program I propose, the law
student will be much better prepared when the law school "hands
over" the law student to the practitioners. The practitioners will
then supervise the applicant's continuing education in a practical
setting via a mandatory clerkship.
The proposed alternative would borrow heavily from the idea
of performance tests. Currently, Alaska, California, and Colorado
include performance tests as part of the traditional bar exam.2 6
The performance tests are supposed to transcend "memorization of
legal rules"2 7 and instead test examinees' abilities to perform and
utilize lawyering skills, such as those delineated in the MacCrate
Report."' In Alaska, students must write a legal memorandum in
the time allowed, answering particular legal questions from a set of
facts." 9 To aid the student, the bar examiners provide both rele-
214. See supra Part II (discussing the history of admission to the American bar).
215. See supra notes 107, 121-22, 146-49 and accompanying text.
216. MACCRATE REPORT, supra note 97, at 280.
217. Id.
218. See id.(explaining that bar exam performance tests determine the students' ability
to use analytic skills and practical knowledge, not whether they have memorized legal
rules); see also supra notes 97-106 and accompanying text (discussing the bar exam and
its relation to lawyering skills).
219. MACCRATE REPORT, supra note 97, at 280.
1232 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
220. Id.
221. Id. at 280-81.
222. Id. at 281. California applicants also have a drafting exercise on the bar exam
which asks applicants to either outline a deposition, draft legislation, write a brief, write a
closing argument, or some similar task. Id.
223. MACCRATE REPORT, supra note 97, at 281.
19951 THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1233
advisors would assist the student in the same way a master's com-
mittee would advise a graduate student on a thesis. The project
would consist of a complicated fact pattern or dispute that involves
a variety of legal issues. Thus, in researching how the dispute
might be resolved, the student would be required to integrate the
core elements of a legal education, such as contracts, torts, civil
procedure, property, constitutional law, criminal law, and profes-
sional responsibility. The fact pattern would also raise legal issues
which are important but may not have been covered in classes
taken by the student, such as tax, environmental law, or corporate
law. This will prevent students from choosing all of their elective
courses simply to prepare for the third year research project. Also,
lawyers constantly encounter legal issues about which they know
little or nothing, and they must educate themselves and consult
with experts.
As should become obvious, such an intense project offers the
student an opportunity to work like a lawyer and be evaluated like
a lawyer. As discussed supra, the bar exam cannot test what law-
yers do, nor can it assess legal competency. In addition, a perfor-
mance test cannot adequately test in thirty minutes what in real life
takes most lawyers much longer. Therefore, the research project
would not be encumbered with unrealistic time restraints such as
those imposed during the bar exam. Students would take the entire
year or one semester to work on their projects. As a result, the
project would enable students to engage in thought (instead of
memorization and recital). It would force students to integrate
ideas, analyze facts and legal doctrine, and evaluate proposed reso-
lutions to the disputes while working in a lawyer-like fashion.
Thus, the research project has the appealing quality of closer corre-
spondence with what lawyers actually do than either the traditional
bar exam or performance testing.
In addition, the practicing bar could have meaningful input into
legal education through the third year project instead of providing
a competency test which serves little use. Practitioners could help
draft the fact patterns, thereby ensuring that legal issues currently
facing the practicing bar will be incorporated into the student's
research.
Once the project is completed, the student will have intimate
knowledge of the legal issues involved and the real-life problems
clients. face, instead of only the fleeting acquaintance students
obtain in preparing for the bar exam. Also, they will have demon-
strated an ability to think with the highest order of cognitive skills,
1234 CASE WESTERN RESERVE LAW REVIEW [Vol. 45:1191
224. Clerkships following formal legal education in other common law jurisdictions typi-
cally range from three months to one year. Students completing an enormous research
project in their third year will have already acquired many of the practical lawyering
skills that they will need to offer minimum competency to clients. Thus, a one year
clerkship is unnecessarily long. In six months, applicants should receive exposure to the
skills and legal environment that will help them develop into practitioners. Consequently,
students would be admitted to practice, assuming all goes well, in October or November
after May graduation. This time frame is identical for a student who takes and passes the
bar exam in the summer after graduation.
225. Recall that in Vermont a portion of an applicant's legal education may be acquired
via a clerkship. The sort of clerkship I intend is not one that could substitute for any
portion of a formal legal education. In contrast, the clerkship I envision is supplementary
to a legal education.
226. See MACCRATE REPORT, supra note 97, at 289 (criticizing clerkship programs in
New Jersey, Vermont, and Delaware because the program is not guaranteed to teach all
necessary tasks and skills).
1995] THE BAR EXAMINATION: JUSTIFICATIONS AND ALTERNATIVES 1235
VI. CONCLUSION
DANIEL R. HANSEN