Law Schools

Re-Imagining A Law School Curriculum To Kill the Bar Exam

The bar doesn’t test all that lawyers do. And it does not test what law professors teach.  

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Bar exam defenders (“older lawyers”) argue that the bar is necessary to protect competency. In other words, the dollars spent in bar review course and forgone economic opportunities is outweighed by the benefit of preserving the discipline’s reputation as being competent by having an exam that weeds out the “incompetent.”

That’s the claim. Don’t get me wrong. I have argued for ages that it is 100% false, and the bar exam’s chief goal is as an entry barrier. The side benefit is it makes some groups richer at the expense of law school graduates who are already practice-ready.

Bar exam defenders, what is the point of the bar exam and law school? It seems to me that we could argue there is a core set of skills we hope law students emerge with upon graduation. Those skills are then tested in the bar exam.

If that’s the case, then law schools could easily retool curriculum to eliminate the bar exam all together. Currently, the skills acquired in law school are not evenly divided or evenly allocated. While the first-year curriculum is set in stone, the 2L and 3L year diverges depending on the preferences of the student and to some degree the hierarchy of the class (journal work). What if we redesigned it and made the process more efficient?

Let us posit some goals for law school:

  1. Legal reasoning. Law professors suggest that the purpose of all those Socratic questions is to get the student to “think like a lawyer,” to frame issues and facts to develop arguments that will make sense and carry weight in the legal community. Legal reasoning means the ability to foresee counterarguments and to dispatch with those without resorting to logical fallacies. It means the use of IRAC. It means appreciation of the inductive method that case law revolves around. Finally, it means discerning what facts matter. Odd we never talk of requiring more jurisprudence classes, though.
  2. Learning the “Law” (Legal doctrine of the courses taught). This seems to be the big thing tested by the bar exam. Can you remember the RAP? The notion here is that law school develops the foundational materials so students know how the silos of law operate, from contracts to torts to criminal law to property. Eventually, students appreciate the relationships between the compartments, but at first the goal is to get the law under the student’s belt.
  3. Critical thinking. The study of law is not just the study of what the law is, but also what it could have been. Policies and consequences guide law in light of the facts. Alternatives matter. So these critical thinking skills can help guide policy to make law better.
  4. Socialization into the profession. The initial lectures tell you that you are entering into a profession. That everyone is entitled to respect and dignity, and disagreements are to be had but that decorum should carry the day.  The class discussion is designed to enforce that, right up until people return to their social media. But the goal is to start that process of civility.
  5. Learning to effectively communicate in written form. Legal writing is an art, and the people who teach it are artists. Those skills need to be honed, and that starts in the first year. And legal writing professors do much more.
  6. Learning to effectively represent clients. Clinical faculty do a serious labor of teaching students to represent clients and engage in oral communication skills. Experienced clinical faculty can help guide students through a variety of difficult circumstances they will experience in practice, all before graduation. And clinical professors do much more.
  7. Enhancing skills in finding the law. Law librarians communicate the skills necessary to learn how to evaluate and find different legal sources. And law librarians do much more.

So, defenders of the bar exam: Which of these are not useful? It seems that the bar exam only tests the graduate’s knowledge of legal doctrine directly, and vicariously, perhaps the graduate’s writing. There is a right answer on the bar exam, isn’t there? Not much critical thinking to apply there. In other words, the bar doesn’t test all that lawyers do. And it does not test what law professors teach.

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Nor has the bar exam evolved much. While lawyers complained that law students don’t know how to read statutes, law schools added statutory interpretation and regulation. The bar didn’t. When lawyers complained that law students didn’t know how to write, we added additional writing requirements. The bar didn’t. When lawyers complained that law students weren’t “practice-ready” (as Biglaw gutted its own training programs), law schools again stepped up.

What I’m suggesting here is the bar exam is an inefficient and expensive bottleneck.

So, dear defenders of the bar exam, what if law schools were serious about restructuring? What if we compelled hard-core skills and legal writing training in the second year? What if we compelled learning all the bar exam topics, and also (because you seem to miss some serious practice areas) administrative law and statutory interpretation? What if we even compelled additional expertise (like Ph.D. field exams)?

Or do you just want us to teach the course covered by the bar exam? Let’s forget entire areas of law not covered by the bar. We can stop with covering additional writing experiences so the students take only those courses required by the bar exam?

Before you answer these questions, what is your relationship with the National Conference of Bar Examiners? Thanks.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at lawprofblawg@gmail.com.

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