Preface for Shaping the Bar
PREFACE
MY MEMORIES OF TAKING THE bar exam are spotty. After law school graduation I spent June and July 1980 with hundreds of others listening to lectures about legal rules in bar review classes in the Los Angeles Convention Center. When not at the convention center, I was at my kitchen table memorizing thick books of rules. I used a highlighter to try to stay focused; eventually the pages were solid yellow and soggy. Aside from the tedium, it was not a bad time. I had a job lined up and only one thing to do. Sympathy and kindness surrounded me. Studying for the bar was such a recognized ordeal that my ex-husband gave me a car to free me from the bus. Even the woman behind the counter at the convenience store wished me good luck and told me how smart I was each time I visited. The stress and boredom of bar preparation were enough to escalate my junk food cravings and visits to the sympathetic 7–11 clerk but were not bad enough to drive me back to cigarettes. My experience was okay.
One close friend was not as lucky. Her focus disappeared when her walking companion collapsed and died on an early morning walk the week of the test. That shock derailed my friend’s bar exam and her career, for a time.
For the nights of the test, another friend and I shared a motel room by the Long Beach Convention Center where we took the exam. I had never heard of Rémy Martin, but I remember that was the cognac my friend pulled out of his suitcase our first jittery night in the motel. The next morning, I found my seat in an ocean of card tables, four to a table, on the floor of an arena in the vast convention center. Elbow room increased when one test-taker left the first morning and never returned.
That July, California bar examiners conducted an experiment in which test-takers were randomly assigned to take one of several new types of tests designed to be more like law practice. The experimental section would not count in our score, but we were unsettled by this random note in an exam that otherwise featured lockstep uniformity. I was a bit disappointed and a lot relieved to be selected for a relatively tame and straightforward version of the performance test experiment. Within a week I had forgotten most of the rules highlighted yellow in my bar books.
The results were released on a Friday late in November. Too impatient to wait for Monday’s mail, I trekked to the state bar office early Saturday morning to look for my name. The scene was bizarre and scary. Local television crews filmed the shouts, tears, and raucous champagne celebrations. A wild crush of candidates pushed forward to read the tiny type of the alphabetized lists of names on sheets of computer paper taped inside the wall of the giant plate-glass windows. I found my name, pushed slowly back through the throng, and was delighted to never again have to think about the bar.
Bar exams became important to me again years later. I have been teaching law students in the shadow of the bar exam for thirty years. The more students I taught, the more disturbed I became about attorney licensing. It is not just that the bar exam does a poor job of testing minimum competence. Plenty of annoying and thoughtless hurdles exist, and law school supplies its share. The inequity and harm to the public are more troubling. I have known elite students at fancy law schools who should not be lawyers; they can cruise through a bar exam but not look a client in the eye or treat her with respect. I have also taught wonderful students at less elite law schools whom I would trust to represent me, except they never passed a bar exam. I have seen up close and personal the disparities inflicted by our current licensing traditions, both law school and bar exams. I can see the faces of too many highly competent former students who are not practicing law because they did not pass the bar. Too many are African American or Latinx. The loss of that legal talent saddens and angers me. Improving attorney licensing became a personal goal.
To try to puzzle out how we should be licensing new attorneys, I have studied and written about legal education and bar exams, taught courses aimed at helping students pass bar exams, and, most recently, had the privilege of serving as a bar examiner in Nevada. I am ready to share what I have learned.
This book is for two groups of clients who deserve better from our profession: the people currently being represented by licensed attorneys who do not know what they are doing, and the grateful future clients of excellent lawyers who would have been lost to the profession without attorney licensing reform.
In 1980 California undertook the most ambitious bar exam experiment in United States history, using me and the other 7,438 applicants for its July bar exam as guinea pigs. The experiment was a bold response to two pressing problems. One big problem was that the bar exam, as gatekeeper to the legal profession, opened wide or slammed shut in predictable ways, depending on who was knocking at the gate to be admitted. In the 1970s law schools had begun enrolling and graduating greater numbers of people of color, but examiners saw that white applicants consistently passed the bar exam at higher rates than African Americans, Asian Americans, and Hispanics.
These troubling disparate impacts helped to focus bar examiners’ attention on another fundamental issue: the wide gap between the skills of actual law practice and the ability to succeed on the paper-and-pencil bar exam. Were the two problems related? The massive California experiment was undertaken to test the possibility that closing the gap between actual law practice and the bar exam might also reduce the disparities in pass rates. But how to bring the bar exam closer to actual law practice?
California bar examiners designed several different versions of tests designed to simulate law practice. Most were paper-and-pencil tests conducted for a few hours. But foreshadowing The Truman Show, a 1998 film about a man whose whole life was an elaborately produced television show, California also set up fake law offices in which about 500 candidates spent two days each pretending to practice law under the watchful eye of fake supervisors.
The results were disappointing. Performance tests would change who passed the bar exam, advantaging those with clinical experience, but racial disparities were not significantly reduced.1 Bar examiners—concluding that the results of all versions of the performance tests were sufficiently similar so the simplest version was good enough—added a relatively short paper-and-pencil performance test to the California bar exam. By now, similar performance tests are used by most states, the only new component since the multiple-choice Multistate Bar Exam was launched by the National Conference of Bar Examiners in 1972. Performance tests are widely and properly praised as the components of today’s bar exams that come closest to law practice, but they are weighted less than multiple-choice and essay questions. Ambition for more fundamental reform burned out and disappeared for decades. Until now.