Over at Concurring Opinions, Dan Solove discusses his recent satirical essay on the Multistate Bar Examination. Dan’s other blog posts make clear that he favors the abolition of the bar exam. “In lieu of the Bar,” Dan writes, “states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours.”
I am somewhat skeptical of this proposal because of the agency problems that plague legal education. What law professors find interesting (and thus worth teaching) may not be a good preparation for a career as a practicing lawyer. The bar exam is at least a reference point for core substantive knowledge. If we think it is a poor gatekeeping device, then the solution is professional engagement with state bar examiners … But most legal academics are rewarded for scholarship rather than teaching or service to the profession. So we are back to incentives and agency problems; we complain but nothing changes. Sustained complaining is what is required, and the opportunity cost is quite high.
That said, the bar exam itself rests on some rather extravagant theoretical and empirical claims. For example, in a 1976 monograph entitled “The Relationships among Law School Predictors, Law School Performance, and Bar Examination Results,” the authors (two psychometricians from ETS) described the bar examination as “the ultimate test of competency” (p. 1). The authors also observed, “The bar examination measures, both essay and MBE, are in effect achievement tests of some the skills and knowledge developed, and tested, in law school” (p. 5, emphasis added).
Really? Few law
professors (or practicing attorneys, for that matter) would sign off on these statements. Perhaps this statement is more accurate: "The bar exam and the MBE are flawed, imprecise measures of competency and achievement; but they have persisted for decades with little or no change because of institutional incentives among legal educators." This situation can be fixed, but who is going to bear the cost?