The Legal Beat

Woke Mob Rewriting The Bar Exam Or Something, According To Judge
Posted on Monday May 22, 2023

In its ongoing effort to identify increasingly nonsensical subjects to blame on political correctness, the Wall Street Journal’s opinion pages offered Alabama Supreme Court justice Jay Mitchell some precious column space to explain how the wokesters are coming for the bar exam. The last time we checked in on Justice Mitchell, he used an opinion to fume that a lawyer used proper English in her brief instead of some alternate universe version of Strunk & White that better supported his thoughts on how we should talk about ethnic minorities. He’s brought a lot of that energy to the subject of the bar exam.

The NCBE plans to introduce a NextGen exam in 2026 to address some of the many deficiencies identified with the test as a gatekeeping device for the modern practice of law. Mostly the effort seeks to improve skills evaluation and reorient the tested subject matter to reflect that an ERISA attorney in New York need not exhibit mastery of admiralty law to get a license.

But this is the WSJ, so the headline is “The New Bar Exam Puts DEI Over Competence.” Of course it is. Still, the judge has to pay some lip service to the standard bad arguments about bar exam reform before digging into the diversity angle.

But the new exam also seems far less rigorous and could hamper the ability of states to determine who should be admitted to practice law. The results could be ruinous. States can’t maintain functional court systems unless clients and judges can trust the basic competency and integrity of attorneys admitted to the bar.

How does it ensure basic competency and integrity now? Judges don’t trust the bar exam. Comprehensive studies reveal that it fails as an indicator of basic competency to practice law. We have a state that doesn’t even use the bar exam and there’s no difference in ethical complaints. For heaven’s sake, Kathleen Sullivan failed the California bar after becoming one of the best lawyers in the country.

Every defense of the exam begins from the premise that the test actually works in the status quo despite considerable evidence to the contrary.

Even if the bar exam adequately tested for competence and integrity — it doesn’t — it can only police getting new lawyers in the door. Clients and judges ideally want good lawyers no matter where those lawyers are in their careers. Yet states don’t require lawyers to demonstrate competence or integrity to renew their licenses. They get tested once and then self-report that they watched a tepid CLE PowerPoint that may or may not have any bearing on their practices. Meanwhile, behind every major ethical flameout is an attorney who passed the bar exam.

If competency and integrity are the highest values, a one-shot generalist exam is not the solution.

The proposed exam will also eliminate family law and trusts and estates as tested subjects. Tens of millions of Americans live in rural areas and small towns, where legal needs typically revolve around family law (marriage, divorce, custody and adoption) and probate matters (estate administration, guardianships and conservatorships). In many rural areas, residents’ access to justice depends on the ability of only a handful of practicing attorneys. These residents need to know that new lawyers have the foundational knowledge to serve their needs or at least the threshold understanding necessary to refer them elsewhere. If these areas of legal practice are eliminated from the exam, it will be difficult to replenish the requisite knowledge in our lawyer ranks.

Fair point. What if we create a place where all prospective lawyers have to sit down, learn about this subject, and then get tested and evaluated on their mastery of that knowledge. We could even have students focus on the subject for longer than a two-hour BARBRI presentation. For lack of a better term, we could call this place a “law school.”

Seriously, if Mitchell wants new lawyers to master family law and T&E, then advocate to require family law and T&E to graduate. For what it’s worth, you can totally bomb the family law sections of the bar exam and still pass now. On the other hand, adding it to the mandatory law school curriculum at least requires every student to get above an F. Even his own stupid straw argument makes no sense.

Personally, I don’t think every law student needs to master these subjects in an increasingly specialized profession, but if that’s the bee in your bonnet, the status quo bar exam is suboptimal.

Alas, this isn’t really Justice Mitchell’s biggest concern. But it’s bad form to launch into a bunch of dog whistling about race without trying some less volatile arguments first:

But perhaps the biggest concern is the NCBE’s use of the NextGen exam to advance its “diversity, fairness and inclusion” agenda. Two of the organization’s stated aims are to “work toward greater equity” by “eliminat[ing] any aspects of our exams that could contribute to performance disparities” and to “promote greater diversity and inclusion in the legal profession.” The NCBE reinforces this message by touting its “organization-wide efforts to ensure that diversity, fairness, and inclusion pervade its test products and services.”

Of course, a test could make itself easier to pass and improve diversity through brute force by admitting more of everyone. But that’s not what anyone but disingenuous state supreme court justices are talking about. In reality, when the test designers talk about “eliminat[ing] any aspects of our exams that could contribute to performance disparities,” they are seeking to identify aspects of the test that raise entry barriers along discriminatory lines without providing much, if any, diagnostic benefit.

Once again, Mitchell’s baseline assumption is that the bar exam delivers the Platonic ideal of minimum competency now, allowing him to jump directly to the assumption that any ethnic or gender disparities must be the result of those examinees “not being good enough.”

But that’s not what the empirical evidence shows. Engaging in the slimmest amount of research — a competency one might want to see from a lawyer (if not a state supreme court justice) — reveals gaps between LSAT and bar exam performance among the groups in question. That means there’s something about the way this specific test is structured that disadvantages people that we know have lawyerly minds from the much better test they already took.

Don’t worry, the column will bypass that and just regurgitates some Horatio Alger shit:

None of this is encouraging. It shouldn’t matter who you are or where you come from—if you can demonstrate minimal competency on the bar exam and meet a state’s character-and-fitness requirements, you should be allowed to practice law. If you can’t, you shouldn’t be given a license to handle the legal affairs of others. The bar exam should test the law straight—without respect to ideology and on a race- and sex-blind basis.

What is he even talking about? Everyone agrees that lawyers need to demonstrate minimum competency, but we don’t agree on what “minimum competency” means. In fact, Justice Mitchell doesn’t even know what minimum competency means because he spends the top of the article trying to convince us that minimum competency requires testing on Trusts & Estates. How is this any different? One could just as easily say the test shouldn’t be “watered down” by cutting back questions about core legal concepts to ask more T&E hypos. He’s unintentionally making the case that how we define “minimum competency” matters.

If, for example, there’s a jurisdiction where women and minority law grads are disproportionately interested in, say, commercial real estate and they ace those sections of the exam and fail because they couldn’t master the hearsay exceptions, do those examinees lack minimum competency? They excelled at the part of the exam that matched up with their professional aspirations, after all.

These are the issues that test designers grapple with when they say they’re trying to “eliminate any aspects of our exams that could contribute to performance disparities.” But that doesn’t get the WSJ audience all lathered up, so just whine about DEI and wokeness and call it a day.

The New Bar Exam Puts DEI Over Competence [Wall Street Journal]

Earlier: State Supreme Court Justice Thinks It’s Racist To *Checks Notes* Use Proper English Style

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