By Kevin Caneco
Every summer, hundreds of aspiring attorneys, after successfully completing three rigorous years of law school, crowd into a room to take a test. This is not any ordinary test but a test that, upon receiving a passing score, allows law school graduates to be admitted to the bar and gain licensure to practice within their states.
This ritualistic, dated and grueling hazing process has outlived its purpose. Once intended to “test” students on all they have learned in law school, it shows no corollary to a successful career in the law. It is time to end this practice.
The idea of allowing students to gain their license without passing an exam is not radical. To the contrary, it is a growing trend in practice already. Wisconsin allows a student who graduates an American Bar Association-accredited school within the state admission to the Wisconsin bar. New Hampshire has instituted a pilot apprenticeship program that requires students take part in a highly rigorous program of courtroom simulations and writing deeply relevant to the practice of law, leading to admission to the New Hampshire bar. The idea of crowding students into classrooms in a pandemic does not make public health sense, Utah, Washington, Oregon, Louisiana and the District of Columbia allowed over 1,000 graduates to be admitted without passing a bar exam. These students still must meet ethical and background checks regularly needed for admission to a state bar.
The idea of “apprenticeship”-type admission programs is growing in popularity, as the pandemic shows that admission without a single “test” is possible and even beneficial to many students. Citizens not educated in the law may not know that many questions on the bar exam may be based off old common law that may not be relevant to the state’s current law. Questions divulge into seven main topics, even if the student never practices in that area. This outdated system can conceivably withhold from admission to the bar a graduate who plans to work for the Delaware Department of Justice as a prosecutor because he missed some property questions, even if he aced the criminal law section.
The exam is also “closed book,” meaning students cannot access the law, a puzzling aspect of the test as it is commonplace for attorneys to research questions presented to them by clients. The 200-question, multiple-choice test has also shown in recent studies to hinder admission to law graduates of color. As an example, in California, which has a high passing-score standard, if it was 1350, which is the median national cut score (passing score), the number of examinees eventually passing the exam would have increased by 8,734 — 3,876 of which would have been attorneys of color.
With no empirical evidence that passing a bar exam makes you a better attorney, why the reluctance to end the annual hazing ritual? This quesiton has seemed to lead to two conclusions: money and stubbornness. Preparation for the test has been transformed into a moneymaking business for law schools and bar-prep programs. After fleecing students in the neighborhood of $100,000-$150,000 for tuition, depending on your school, law schools will often charge students extra and require they enroll in bar-prep classes. Outside the school, bar-prep programs feed off anxious and nervous law students for multi-thousand-dollar tutoring. Bar-prep has led to profits in the neighborhood of millions for those who founded and run them.
Finally, there seems to be a traditional and common idea within the bar that, “We got through it, so must you.” Administering a broken exam just because current attorneys took it is the oddest of excuses.
Delaware should be a leader in the current rethinking of legal education and bar exams. Two years ago, the ABA said law school could not be completed online. However, today, the Delaware Law School’s class of 2021 will have had half their law school education online.
The pandemic has brought us to this uncomfortable moment where we can choose to improve admission programs to the bar with apprenticeships that value practical experience and require actual command of current law. Or we continue to use a system that often punishes law graduates for not mastering a few far-reaching aspects of the law not relevant to the current profession. Legal education has been transformed in the wave of the pandemic, and sometimes, crisis allows us to see our flaws.
Kevin Caneco of Middletown is a third-year student at Delaware Law School, where he is president of the American Constitution Society.
