The bar exam is less of a test of legal competence and more of a Scantron-centric hazing ritual. A three-year crucible of critical learning and professional training capped off with a few weeks of rote memorization for the sake of a test on subjects the lawyer will never advise a client on again. In the real world, a time-crunched, doctrinal, memory test on issues where the lawyer has no experience is called “malpractice,” but for the summer before entering practice we call it “the bar exam” and pretend it makes sense.
This week, Utah announced that it will formally introduce an alternate pathway to licensure to allow prospective lawyers to skip the bar exam ritual altogether and earn their license through a combination of formal education, supervised professional experience, and a tailored, skill-based exam. Anyone who wants to take the bar exam is still welcome to it, but the state now has another path that is not only sufficient for vetting competent practitioners… it’s probably better.
Utah began its journey toward a bar exam alternative back in 2020. With COVID locking down the country, Utah bucked the nation’s hand-wringing bar examiners and pioneered an “emergency diploma privilege plus” admission program rather than cram law grads into an exam hall and see who coughed first. Spoiler alert: it worked. Lawyers got licensed. Clients got represented. The judicial system didn’t collapse.
While the National Conference of Bar Examiners, the surprisingly financially flush “non-profit” that monetizes this gatekeeping ritual spent the lockdowns ranting that diploma privilege a threat to civilization. With a straight face, they claimed the exam was necessary to protect the public — and not without a dash of sexist and racist tropes for flavor — even though the evidence weighed entirely to the contrary. An ABA study tracking attorney discipline rates found no difference between a diploma privilege jurisdiction and states that cling to the bar exam.
Something you’d think the NCBE would understand since they’re based in Wisconsin and led by a diploma privilege recipient.
Upon the success of the COVID-era trial program, Utah decided to explore a permanent option. To that end, the courts set up a panel featuring a broad spectrum of legal experience from judges to professors to practitioners. Importantly, as BYU Law Professor Catherine Bramble, who served on the committee, explained the group included alternative pathway skeptics who joined the group expecting to reject any move away from the bar exam. But after years of meetings with the NCBE, the scholarly research on attorney licensure, and reviewing the empirical results of the COVID experiment, the body voted unanimously to adopt an alternative.
BYU Law Professor Catherine Bramble, who served on that committee and then joined the smaller task force charged with settling the particulars, explained that the group rose to the challenge to “build a better way to license attorneys based on understanding the skills attorneys need for practice.” The skills-centric approach draws heavily on the work done by Professor Deborah Merritt, whose expansive study of the licensing process and the practical needs of attorneys earned a “fake news” shrug from the NCBE.
Unsurprisingly, based on that response, neither the current bar exam — and the much ballyhooed NextGen exam — directly satisfied the group as a solution meeting the identified needs of future practitioners.
According to Bramble, the task force flagged a few key areas they wanted to emphasize in any alternative process. First, a commitment to curriculum learning. Applicants spent three years in law school… honor that. We’ve talked about that here at Above the Law before. To the extent specific coursework is needed, work on making sure it’s available. Second, ample supervised practical work to convey satisfactory achievement. The new plan requires 240 hours of supervised work (of which 50 must be pro bono), which is on top of the ABA’s requirement that graduates complete 6 credit hours of practical work. All told, this amounts to over 500 hours of practical work.
The final leg of the new procedure is a written exam, though it’s a far cry from the existing bar exam. Instead, applicants will take a Utah-commissioned exam that provides the examinee a closed universe of materials and asks them to perform tasks that a typical first-year attorney would be asked to perform. “One of our biggest concerns was that most practicing lawyers couldn’t pass the bar exam today,” Bramble explained. “Either we’re all not competent attorneys, or the bar exam is fatally flawed at measuring competence.”
Remember when Kathleen Sullivan of all people couldn’t pass a bar exam? Yeah, that.
With this in mind, the task force made it a priority that the written exam be something that a practicing attorney could pick up and pass right now based on their knowledge and experience. It’s not just a waste of time to test applicants on a doctrinal memory test, it skews the whole process toward applicants with more resources. If you have disposable income for a prep course and the luxury of taking off work, you’re more likely to pass the test. That’s not a useful indicia of competence, and it closes off the profession to potential lawyers that the public needs to address mounting access to justice concerns.
This is the sort of innovation that needs to take root across the country. Go back to first principles… what is the goal of licensure? If it’s attorneys who know how to competently and ethically do the job, what gives a state the confidence that an applicant can handle that duty?
It’s probably not “cramming for a memory test.”
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Lawyers Without The Bar Exam: Utah Announces Alternate Licensing Path, And The Sky Still Isn’t Falling appeared first on Above the Law.
The bar exam is less of a test of legal competence and more of a Scantron-centric hazing ritual. A three-year crucible of critical learning and professional training capped off with a few weeks of rote memorization for the sake of a test on subjects the lawyer will never advise a client on again. In the real world, a time-crunched, doctrinal, memory test on issues where the lawyer has no experience is called “malpractice,” but for the summer before entering practice we call it “the bar exam” and pretend it makes sense.
This week, Utah announced that it will formally introduce an alternate pathway to licensure to allow prospective lawyers to skip the bar exam ritual altogether and earn their license through a combination of formal education, supervised professional experience, and a tailored, skill-based exam. Anyone who wants to take the bar exam is still welcome to it, but the state now has another path that is not only sufficient for vetting competent practitioners… it’s probably better.
Utah began its journey toward a bar exam alternative back in 2020. With COVID locking down the country, Utah bucked the nation’s hand-wringing bar examiners and pioneered an “emergency diploma privilege plus” admission program rather than cram law grads into an exam hall and see who coughed first. Spoiler alert: it worked. Lawyers got licensed. Clients got represented. The judicial system didn’t collapse.
While the National Conference of Bar Examiners, the surprisingly financially flush “non-profit” that monetizes this gatekeeping ritual spent the lockdowns ranting that diploma privilege a threat to civilization. With a straight face, they claimed the exam was necessary to protect the public — and not without a dash of sexist and racist tropes for flavor — even though the evidence weighed entirely to the contrary. An ABA study tracking attorney discipline rates found no difference between a diploma privilege jurisdiction and states that cling to the bar exam.
Something you’d think the NCBE would understand since they’re based in Wisconsin and led by a diploma privilege recipient.
Upon the success of the COVID-era trial program, Utah decided to explore a permanent option. To that end, the courts set up a panel featuring a broad spectrum of legal experience from judges to professors to practitioners. Importantly, as BYU Law Professor Catherine Bramble, who served on the committee, explained the group included alternative pathway skeptics who joined the group expecting to reject any move away from the bar exam. But after years of meetings with the NCBE, the scholarly research on attorney licensure, and reviewing the empirical results of the COVID experiment, the body voted unanimously to adopt an alternative.
BYU Law Professor Catherine Bramble, who served on that committee and then joined the smaller task force charged with settling the particulars, explained that the group rose to the challenge to “build a better way to license attorneys based on understanding the skills attorneys need for practice.” The skills-centric approach draws heavily on the work done by Professor Deborah Merritt, whose expansive study of the licensing process and the practical needs of attorneys earned a “fake news” shrug from the NCBE.
Unsurprisingly, based on that response, neither the current bar exam — and the much ballyhooed NextGen exam — directly satisfied the group as a solution meeting the identified needs of future practitioners.
According to Bramble, the task force flagged a few key areas they wanted to emphasize in any alternative process. First, a commitment to curriculum learning. Applicants spent three years in law school… honor that. We’ve talked about that here at Above the Law before. To the extent specific coursework is needed, work on making sure it’s available. Second, ample supervised practical work to convey satisfactory achievement. The new plan requires 240 hours of supervised work (of which 50 must be pro bono), which is on top of the ABA’s requirement that graduates complete 6 credit hours of practical work. All told, this amounts to over 500 hours of practical work.
The final leg of the new procedure is a written exam, though it’s a far cry from the existing bar exam. Instead, applicants will take a Utah-commissioned exam that provides the examinee a closed universe of materials and asks them to perform tasks that a typical first-year attorney would be asked to perform. “One of our biggest concerns was that most practicing lawyers couldn’t pass the bar exam today,” Bramble explained. “Either we’re all not competent attorneys, or the bar exam is fatally flawed at measuring competence.”
Remember when Kathleen Sullivan of all people couldn’t pass a bar exam? Yeah, that.
With this in mind, the task force made it a priority that the written exam be something that a practicing attorney could pick up and pass right now based on their knowledge and experience. It’s not just a waste of time to test applicants on a doctrinal memory test, it skews the whole process toward applicants with more resources. If you have disposable income for a prep course and the luxury of taking off work, you’re more likely to pass the test. That’s not a useful indicia of competence, and it closes off the profession to potential lawyers that the public needs to address mounting access to justice concerns.
This is the sort of innovation that needs to take root across the country. Go back to first principles… what is the goal of licensure? If it’s attorneys who know how to competently and ethically do the job, what gives a state the confidence that an applicant can handle that duty?
It’s probably not “cramming for a memory test.”
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
