ABA panel scrutinizing bar exam alternatives

An American Bar Association panel is closely exploring alternatives to the traditional bar exam format that it may ultimately recommend states pursue, according to ABA President Hilarie Bass.

She said the Commission on the Future of Legal Education is examining whether a portion of the bar should be taken after the first year of law school.

The panel, established by Bass, also has discussed allowing an unsuccessful test taker to only retake the portion of the bar they failed and administering the bar many more times per year.

“I don’t think there’s anyone who would suggest that if we would start fresh today, we would design a system where it’s a winner-take-all single exam given only twice a year, three years after the basic coursework that you have taken,” Bass said in an interview. “It just doesn’t make any sense at all to me.”

Commission member David L. Faigman, dean at UC Hastings College of the Law, said he is thrilled the panel is undertaking a detailed review of ways to change the bar exam.

The test does not effectively evaluate whether aspiring lawyers possess the practical skills law firms expect them to have, he said.

“We need to, as a commission, consider proposals and initiatives that might make the bar exam more responsive to the demands of the legal profession,” Faigman said.

As part of those efforts, the commission has spoken to state Supreme Court justices from around the country about their bar exams.

Faigman said the panel, which was announced last August, has met with National Conference of Bar Examiners officials and plans to communicate with state bars. The commission was also represented at the AccessLex Bar Exam Research Forum last month in Washington, D.C., said Commission Director Andrea P. Sinner.

“Right now we’re essentially trying to collect as much information from as many quarters as we possibly can,” Faigman said.

Bass, co-president at Greenberg Traurig LLP, said it was possible the panel could release further information about bar exam alternatives in August.

The commission also plans to publish a law school innovation index later this summer, she said. The goal is to provide additional information to prospective students deciding where to attend law school.

“Right now, it would be impossible for them to really find which law schools are focusing on the kind of legal skills that one would need for the future profession,” Bass said.

The commission recognizes artificial intelligence, machine learning and other technological developments will affect the way law is practiced, Faigman said.

It is examining how legal education should adapt to the quickly evolving technology sector to best prepare graduates and considering the impact such innovations should have on the definition of minimum competency.

“What it means to be a minimally competent lawyer is likely to change itself as technology changes the practice of law,” Faigman said.

The ABA commission will work through August 2019, and its efforts come at a time when interest in legal education is again growing. Bass said the roughly 9 percent bump in law school applicants only heightens the importance of the commission’s efforts.

“We have to make sure that these people are being educated and tested for the legal profession that they are going to be facing, not one that existed in 1950,” she said. “And whereas there are many law schools that have made significant progress in becoming much more innovative, certainly our testing system has not.”