Questioning the Bar Exams

Are they any good? Why do so many students fail?

The Winter Olympics. The New Hampshire primary. For some 15,000 earnest young Americans, these rites of late February are trifling contests. What absorbs them is a two-or three-day test that they must pass if they are to practice the trade in which they have invested three years of postgraduate study and as much as $16,000 in tuition: lawyering. Nowadays, the anxiety about bar exams, which most states hold the last week in February as well as in July, is more acute than ever. Failure rates have been rising steadily, and this month more than one-third of the test takers can expect to flunk.

Though the graduates of the U.S.'s more than 200 law schools seem as brainy as ever, and 85% of them take seven-week courses designed to prep them for the bar, the national pass rate declined from 76% in 1973 to just 67% in 1978. Many of those who will take the test next week will be making their second or third attempt to pass--and to defy statistics that say that repeaters are especially likely to fail. Says Chicago Attorney Herbert J. Blum Jr.: "No one ever quits. If you have gone through three years of law school, you are just never going to give up."

Bar exam horror stories are nothing new; one Illinois exam official recalls a fellow who failed 13 times before conceding defeat ("I think he now holds some kind of job with the state"). But as the tales of woe rise with the flunk rates, state examiners are taking heat from charges that the bar is scheming to limit the new lawyers admitted to practice.

For years, critics have also argued that the test fails to measure the skills that a lawyer really needs. More recently, the exam has been indicted for discrimination against minorities. The only agreement about the test, apparently, is that it is an ordeal. In virtually all states, applicants spend six hours on one day trying to answer 200 tricky multiple-choice questions drawn up by the National Conference of Bar Examiners with the help of the Educational Testing Service of Princeton, N.J. The applicants then write essays in response to a series of legal questions, which vary from state to state.

The hottest debate on low pass rates is going on now in New Jersey. Nearly 53% of the 1,491 people who took that state's test last July struck out; five years earlier, a mere 17% failed. Yet today's students are no dolts. Says Paul Tractenberg, a Rutgers law professor: "For the most part, they are as diligent and in some ways more driven now than earlier." One cause of the high fail rate is a 1976 decision to alter the grading. Before, any student who answered 140 of the multiple-choice questions correctly passed automatically, no matter how bad his essays were; in 1976 the trigger figure for passing became 145. (In Pennsylvania, by contrast, the pass number is 135.) Then, last July, something strange happened in the essay portion: of the 60% who scored below 145 on the multiple-choice section, only 10% did well enough on the essays to pass the exam --far fewer than in earlier years.

Such results naturally arouse suspicions that lawyers are trying to keep competition in their lucrative field to a minimum. By any measure, the profession's growth has been swift: there are almost 500,000 attorneys in the U.S. today, up from 355,000 a decade ago. In 1978 alone, some 30,000 new lawyers were admitted to the bar, and even in so litigious a society as the U.S., there is a limit to the amount of business available. But suggestions that the declining pass rates reflect the desire of established lawyers to limit new competition draw strong denials from state bar examiners.

A basic question is whether bar exams are a good measure of who is qualified to be a lawyer. The major criticism is that while they do test memory, they do not probe ability to do legal research, conduct interviews and argue in court. Bar officials in California, concerned about this and the low pass rates achieved by minorities there (about 30% for blacks and 40% for Hispanics, vs. 70% for whites), have considered conducting an experiment: having bar applicants take various innovative tests, including a quiz on a mock arbitration proceeding recorded on video tape. Whatever they are, new legal wrinkles developed in California tend to have wide impact; the state has about a fifth of the nation's student lawyers.

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