The Bar Exam is upcoming. And with it comes heightened stress and potential for students, but also an odd chance for diverging interests between a small number of students and their law schools.
Bar exam homonyms: high stakes; gateway, leveler, stressor, useless unnecessary burden after three years of school, fee generator, standardizing, and proficiency. I’m sure “bar exam” conjures up many more thoughts and meanings for others. For law students, the impact of this exam is wide-ranging. Most graduates spend months of intensive study preparing for the bar exam. They incur additional debt for these review courses; they devote months of their lives to study intensively for the exam. Exam passage marks the entree into our profession with all of its benefits and burdens. Exam passage allows our graduates to practice law and makes more likely their getting and keeping a job sooner rather than later.
While for individual students, we provide encouragement, cajoling, and hope for exam success, their exam success has an additional impact on us. For law schools, the bar exam is a factor in accreditation and in reputation. The ABA accreditation standards require a law school to meet a bar pass requirement that can be done in one of two ways: “either by showing that 75 percent of its graduates who took the bar exam in at least three of the previous five years passed or by showing that its graduates’ first-time bar pass rate was no more than 15 points below the average bar pass rate for ABA-approved schools in states where its graduates took the bar.” The ABA, this spring, did not follow through on a proposal that would have increased the passage percent rate requirement from 75 to 80 percent. This connection to accreditation, while arguably standardizing law schools, can recast student success on the bar exam from an individual achievement and triumph to an institutional success or failure.
Therein lies a challenge for a small number of students – reconciling the individual student’s path toward bar exam success with institutional markers of success. Where one student may benefit from repeated attempts at taking the exam, gaining familiarity and comfort and so easing stress that inhibits success, the student’s school must count that student’s learning process as a “failure” against institutional success and reputation. To foster institutional reputation, encouraging some students to wait to take the bar exam seems a good path; on the other hand, for the student who would benefit from the exposure, supporting the student’s decision to take and re-take may be the better path for the student even if not for the institution. A delicate balance is needed when we approach those students who are at risk of not passing the bar exam.
Of course, student success or failure arises from many factors, and the choice to take the exam in the face of difficulties is the graduate’s. It’s also worth remembering that many famous people did not pass the bar exam on their first try including President Franklin D. Roosevelt, First Lady Michelle Obama, and even Supreme Court Justice Benjamin Cardozo. So, I’m going to encourage all of our students to know themselves, to work as hard as they can in the way that works best for them, and of course: wish all students success on the bar exam.
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Best Practices for Legal Education 
This is indeed an issue that requires a delicate balance. I am a strong believer in robust student mentoring and advising. Sometimes that manifests as additional bar preparation courses or other strategies, both for instiutions as well as individual bar candidates. Critics occasionally complain that they interfere with or dilute scholarly integrity, but I disagree. As educators we must maintain a respect for and a structure supporting both of these intermingled educational needs.
A Wish for Current and Future Bar Examinees
I join those who wish this July’s bar takers luck on the bar exam. While law schools take seriously their obligation to prepare students to pass the bar exam, they also take seriously their obligation to prepare students for practice. Legal educators have begun integrating more simulations and experiential learning into the curriculum to better prepare tomorrow’s lawyers. Yet the bar exam content and format remains stagnant and, in fact, serves as a potential barrier to legal education innovation.
The National Conference of Bar Examiners’ own excellent job analysis study of the skills needed by newly licensed lawyers indicates that new lawyers need a much wider range of skills than the exam currently tests. http://www.ncbex.org/assets/media_files/Research/AMP-Final-2012-NCBE-Newly-Licensed-Lawyer-JAR.pdf
The NCBE has the resources to develop an exam that tests a much wider range of lawyering skills. Rather than increasing the amount of doctrine tested, wouldn’t it better serve the public to test other skills such as legal research, fact development and investigation, interviewing, counseling, negotiation, the ability to recognize the role culture plays in how people understand and interpret facts and legal rules, etc?
Thus, while I wish this year’s bar takers luck, I also wish for a future in which the bar exam more accurately reflects the skills newly licensed lawyers should possess.
You are wrong to list Justice Cardozo as having failed the bar exam. This pernicious canard has been posted and reposted many times in the past few years, without credible sourcing. The truth is contained in Andrew Kaufman’s biography, Cardozo, at p. 54: young Benjamin applied for admission to the New York on June 26, 1891, as soon as he turned 21. He was duly examined and was admitted on October 26 of that year. Now it IS true that Cardozo dropped out of Columbia law school without earning a law degree, but that’s another story (told at p.49).