Note: This is the first entry in what we hope will be a continuing column about interesting developments in legal education. Each article will present a brief overview of a controversy or recent trend in the theory or practice of legal education. If you have ideas for future columns, or if you are interested in writing about a legal education development yourself, please contact Sara Kelley at sek28@law.georgetown.edu.
A few months ago, the Georgia State University Law Review held a symposium on a topic that is probably considered heretical by many in legal education. The symposium was called “Rethinking the Licensing of New Attorneys: An Exploration of Alternatives to the Bar Exam.”1 According to critics of the traditional bar exam, it relieves law schools of responsibility for admitting only students who are likely to become competent lawyers and for preparing their graduates for the actual practice of law.2 It does this by purporting to prevent the licensure of law school graduates who are not minimally competent to practice,3 while in fact failing to test many skills that are critical for success as an attorney.4 Debate continues on whether this failure to test essential skills has been corrected by the adoption of the Multi-State Performance Test in 31 jurisdictions.5 Another criticism of the bar exam is that it has a disparate impact on minority bar applicants.6
So how would the critics replace the traditional bar exam? Below are brief (and probably incomplete) descriptions of a few of the possibilities:
Even now, not everyone is admitted to practice by taking a traditional, closed-book bar exam. For example, Wisconsin recognizes the “diploma privilege” – that is, students who graduate from Wisconsin law schools are admitted to practice without taking an exam. To qualify for admission under this privilege, graduates must complete ten specific courses with a 77 average (constitutional law, contracts, criminal law and procedure, evidence, jurisdiction of courts, ethics and legal responsibilities of the legal profession, pleading and practice, real property, torts, and wills and estates) and must complete at least 60 of their law school credits in thirty specified subject areas, also with a 77 average.7 Graduates who do not meet these requirements may still sit for the bar exam.
Another example of an existing alternative to the traditional bar exam is Maryland’s open-book essay exam for lawyers seeking reciprocity.8 This exam is “designed to test the license applicant’s ability to research and utilize Maryland law related to civil, criminal and appellate procedure, evidence, rules related to decedent’s estates, family law and juvenile proceedings, property actions and alternative dispute resolution” and other basic rules of Maryland law.9
A student group at the University of Arizona Rogers College of Law has proposed one radical alternative to the traditional bar exam: Instead of spending two months studying for a two-day written examination, bar applicants under this proposal would spend one year in a post-JD apprenticeship program that provides reduced-fee representation to “lower middle-income” persons. Applicants to the program would be required to graduate from an ABA-accredited law school with a minimum GPA of 2.75, and to complete specific core classes. Those selected as apprentices would be employed by a freestanding 501(c)(3) organization that would be created with one specific purpose being alternative attorney licensure. That organization would also employ experienced attorneys to supervise, train, and evaluate the apprentices as they rotate through each of six practice areas. These “lawyer-mentors” would conduct performance evaluations throughout the six rotations. Apprentices who successfully completed all evaluations would become licensed after an appropriate character examination. Apprentices who were unsuccessful in the evaluations or who failed to complete the year-long program could still be licensed by taking the standard bar examination.10 So far, the Arizona bar has not acted on this proposal.
A joint committee of the Association of the Bar of the City of New York and the New York State Bar Association has proposed a “Public Service Alternative Bar Exam” (PSABE). Like the Arizona proposal, licensure under the New York proposal would require law school graduates to have completed certain core courses and to apprentice in a public service capacity prior to admission to the bar. Under the New York proposal, however, graduates selected for the program would apprentice for three months with the New York state court system. These program participants would “work with court attorneys, assisting in the drafting of judicial opinions. . . . [They] will be supervised by senior court attorneys and receive direct feedback from their respective supervisor as well as the judges for whom they are writing.” Participants would also take part in case conferences, meeting with parties and their counsel to attempt to resolve discovery and scheduling disputes, and to facilitate settlements. Finally, they would help in court offices staffed by attorneys who assist self-represented litigants.11 Law graduates admitted to practice under this proposal would then be required to perform 150 hours of pro bono work in the courts during their first three years of licensed practice.12 There has been no action taken on the New York proposal.
Wide-scale adoption of any of the above alternatives to the traditional bar examination, while not likely in the near future, could eventually lead to major changes in law school curricula. Such adoption would also create a need for collection development changes in many academic law libraries. Widespread adoption of the diploma privilege, for example, would probably increase the number of law students taking the courses required to qualify for the privilege and therefore justify increased collection in those subject areas. Adoption of more hands-on alternatives such as the Arizona or New York proposals would probably lead to an increased emphasis on clinical education, with a resulting increase in the need for practice materials in academic law library collections. Perhaps the increased focus on skills education would even lead to greater awareness of the importance of legal research classes in the law school curriculum and a greater teaching role for academic law librarians.
1 The papers from this symposium were published in volume 20, issue 4 of the Georgia State University Law Review (2004).
2 E.g., Kristin Booth Glen, Thinking Out of the Bar Exam Box: A Proposal to “MacCrate” Entry to the Profession, 23 Pace L. Rev. 343, 355-57 (2003).
3 Id. at 347 n. 3.
4 ABA Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development: An Educational Continuum 278 (Robert MacCrate, ed., 1992); Committee on Legal Education and Admission to the Bar of the Association of the Bar of the City of New York & Committee on Legal Education and Admission to the Bar of the New York State Bar Association, Joint Committee Report: Public Service Alternative Bar Examination 2-3 (2002), available at http://www.abcny.org/pdf/report/Joint%20report%20on%20the%20State%20Bar%20Exam.pdf [hereinafter “Joint Committee Report”].
5 Sally Simpson & Toni M. Massaro, Students with “CLAS”: An Alternative to Traditional Bar Examinations, 20 Ga. St. U. L. Rev. 813, 825 (2004); National Conference of Bar Examiners, Multistate Examination Use (2001), at http://www.ncbex.org/tests.htm.
6 E.g., Beverly Moran, The Wisconsin Diploma Privilege: Try It, You'll Like It, 2000 Wis. L. Rev. 645, 653.
7 Id. at 647-48 nn. 35 & 36.
8 Society of American Law Teachers, Potential Alternatives for the Existing Bar Exam, at http://www.saltlaw.org/barexamalternatives.htm.
9 Id.
10 Simpson & Massaro , supra note 5, at 817-18.
11 Joint Committee Report, supra note 4, at 11-12.
12 Id. at 6.