It is time to review our decades’ long commitment to the proposition that, as a general matter, the foundation for admission to the bar should be the completion of a formal legal education program at an ABA-approved law school and passage of a general bar examination. Ongoing discussions and critiques of both the accreditation standards and the bar examination, while seldom directly attacking that proposition, are nibbling around its edges.
Common critiques of the accreditation standards and, more generally, legal education, do not often challenge the idea that a legal education is a fundamental requirement of licensure, but rather argue that law school requires “too much” (e.g., the 3L year) and/or “not enough” (e.g., too little practical and skills training).
The common critique of the bar examination is not that there should not be one, but rather whether current bar examinations are designed and administered to assure that those who are admitted to the bar have the basic knowledge and competence that the public and the profession should expect of a new lawyer.
Together, a legal education and the bar examination, some suggest, drive up the cost of becoming a lawyer (tuition, bar license fees, bar exam prep program fees, opportunity costs), contributing to our access-to-justice problem, hampering efforts to diversify the profession, and inhibiting many of the “best and the brightest” from seeking careers in the law.
The Preface to the ABA Standards for Approval of Law Schools says:
“The Council and the ABA believe … that every candidate for admission should have graduated from a law school approved by the ABA and that every candidate for admission should be examined by public authority to determine fitness for admission.”
That statement has been in the preface “since the memory of man runneth not to the contrary,” as the old saying goes. While the critiques of legal education and the bar exam often do not question that both are necessary to a good licensing system, I do hear:
- “What’s the point of requiring an ABA-approved J.D. degree if a person can pass the bar exam?” and
- “If the bar exam is not testing for competence in what it is that lawyers really do, why should it be required? Maybe we should reinstitute a diploma privilege.”
Critiques of whether the Standards are the right Standards and whether the bar exam is the right bar exam are, to a certain extent, questions about whether the twin requirements that have been the foundation of the licensing system in our country should continue to be the approach.
We need both. Law school is about acquiring the knowledge and skills needed to begin a life as a legal professional, but it is much more. A bar examination, by its very nature, cannot test everything that the profession and the public want a new lawyer to know, and it cannot meaningfully assess whether the new lawyer has the overall skills and perspectives that we would hope new lawyers would bring with them into the profession to develop and hone over a career.
Before we dive further into the weeds about the particulars of an acceptable legal education and bar examination, perhaps we should pause for a moment to return to this important first principle.
This re-examination should involve legal educators, judges (particularly state court judges who largely control the rules related to admission to practice), bar examiners, and members of the public. If we agree on this first principle, then our conversations about the legal education programs and bar examination – what each should seek to be and how they relate to each other – should be sharper, more productive, and more harmonious.