From My Perspective: Why a Bar Exam?
The legal profession has come a long way in Illinois since the days of Abraham Lincoln and “reading the law” in a law office as a means to obtain a license to practice law. The number of individuals entering the legal profession each year has grown exponentially since Lincoln practiced law across rural Illinois, due to the new roles and responsibilities attorneys fulfill in all facets of modern society. Today, in order to regulate the legal profession and to ensure that clients are adequately represented and protected, the Illinois Supreme Court requires a new Illinois lawyer to have acquired a law degree from an ABA-accredited law school (with exceptions for graduates of foreign law schools, who must comply with other eligibility requirements), to pass a character and fitness screening, and to receive a qualifying score on the Uniform Bar Examination (UBE).
During the COVID-19 pandemic, as restrictions on mass gatherings and local health and safety guidelines jeopardized the ability to conduct an in-person exam, many jurisdictions adopted emergency measures to ensure that candidates would not be delayed in their path to admission. Some of these measures included emergency adoption or expansion of rules allowing recent graduates to practice under supervision until they were able to take the bar exam or, in a few cases, emergency diploma privilege allowing qualified candidates to be admitted without taking the bar exam.
During this time, some questioned the need to require any bar exam at all. In lieu of a bar exam, alternative suggestions have included (1) admission based solely on receipt of a degree from an accredited law school, (2) requiring a period of apprenticeship in a law office under the tutelage of a qualified practitioner who could certify the person’s fitness and ability to practice law, or (3) employing a combination of the two. While historically these options have existed in some jurisdictions, the majority of jurisdictions have relinquished these options in favor of requiring passage of the bar exam.
Aside from the usual arguments that we require doctors, certified public accountants, veterinarians, and barbers—to name but a few—to be certified to ply their trade, which involves passing a standardized test, here are a few observations about the desirability of requiring aspiring lawyers to pass the bar exam, in particular because of the great public trust that is required of the legal profession.
The bar exam is the Illinois Supreme Court’s measure of minimum competence to practice law in Illinois. The components of the Illinois bar exam have evolved over the years, and Illinois now administers the UBE—which has, at the time of this writing, been adopted by 40 jurisdictions. The Illinois bar exam has remained a consistent test of basic lawyering skills, reading comprehension, knowledge of basic legal principles, and writing ability. Passing the bar exam serves an important gatekeeping function in ensuring public protection.
If Illinois abandoned the bar exam in favor of one of the suggestions mentioned above, the Illinois Supreme Court—the traditional gatekeeper for determining who should be accorded the privilege of practicing law in Illinois—would be ceding the gatekeeper role to either a law school or a licensed attorney. Needless to say, standards for admission would undoubtedly vary from school to school or from lawyer to lawyer.
The Illinois Supreme Court is already limited in the oversight of the education law students receive, because prospective Illinois attorneys are graduates from law schools located across the country and even outside the United States. Although the Illinois Supreme Court requires graduation from an ABA-approved law school (aside from the foreign law school graduate option mentioned above), it does not set standards for admission to law school or for a law school’s curriculum. These matters are determined by each individual law school, which may have many rationales and goals when setting admission and graduation standards, although the rate of success on the bar exam is an important factor that the ABA uses to assess the success of a law school’s legal education.
The bar exam holds all examinees who wish to practice law in Illinois to exactly the same standard year after year, no matter what law school they graduated from, in that they must achieve the same minimum passing score. The minimum passing score is set by the Illinois Supreme Court in consultation with the Illinois Board of Admissions to the Bar, and while passing the bar exam may not ensure that a person will be successful in practicing law, it does ensure to the Court that everyone who passes has at least a minimum level of competency.
Similarly, while the need to be approved as morally and ethically fit to act as the legal representative of others may not be guaranteed by the approval of a committee on character and fitness, this process certainly helps to prevent entry into the profession by those who should not be entrusted to handle the confidential legal affairs of others—whether because their morals or ethics are suspect, or because they have a record of violating standards of accepted conduct.
As noted above, the Uniform Bar Examination given in Illinois holds all who would be lawyers to pass the exact same exam given to all. The standards and the content of every exam are substantially the same me
The Uniform Bar Exam which Illinois now gives is not substantially different from the prior exams Illinois gave. The UBE has three exam components. First, the MultiState Bar Exam (MBE) consists of 200 practice-centered, multiple choice questions in seven core areas of law. The multiple-choice format permits objective grading and sampling of a broad array of content contributing to high reliability of the score.
Second, the Multistate Essay Exam (MEE) is a six-question essay exam that also covers core law practice areas and provides an assessment of a candidate’s ability to identify and analyze legal issues while also showing their ability to convey that analysis in writing. The Illinois Supreme Court has been made aware of the fact that many individuals sitting for the bar do not have any degree of writing proficiency, a major shortcoming for any prospective lawyer.
Finally, the Multistate Performance Test (MPT) consists of two 90-minute case simulations that require the examinee to create a written product for a supervising attorney using a case file and a closed universe of legal resources.
The essay and writing portions of the exam challenge the examinee to think critically and express their thoughts and analyses under the stress of time constraints. Although practicing attorneys may not always face the same type of time constraints when practicing law, similar time and stress constraints may well occur when appearing in court before a judge and opposing counsel where the need to think and formulate an intelligent and effective argument or response is critical to a client’s best interests.
In sum, a bar exam provides a level playing field to test the skills and abilities of all would be lawyers. The UBE and review by a character and fitness committee provide assurance that a person is in fact at least minimally qualified to practice law in Illinois. The decision of who should be allowed to practice is not left to the uncertain and varying standards a law school uses in accepting and graduating students. Nor is it left to the whim of any individual attorney whose standards and methods can vary from attorney to attorney and as applied to each prospective lawyer. And the Illinois Supreme Court retains its role as gatekeeper for admission to the practice of law in Illinois.
Hon. Lloyd A. Karmeier served on the Illinois Supreme Court from 2004 until his retirement in 2020, serving as chief justice from 2016 to 2019.
Member Comments (1)
Justice Karmeier is absolutely correct. I am retired from law school teaching, but I was a full-time law professor for over 40 years. I have taught at 16 (!) different law schools (that includes pre- and post-retirement teaching as a visiting professor). I have taught at law schools that were ranked in Tier 1 and schools ranked in Tier 4.
Some of the students I taught were no doubt well prepared to enter the practice of law upon graduation. Unfortunately, some were not, even at some of the better schools. We need the bar exam, in part to weed out those who manage to graduate despite lacking the necessary knowledge and skills.
The rumors of grade inflation are true. Most law schools have a grading curve that is either explicitly required or de facto required. I have been required to give a C to students that, in my opinion, deserved an F or a D. During my career, the whole range of grades (A, B, C, D, F or the equivalent) was available. Today, many law schools give almost everyone As and Bs, with a C being the equivalent of a failing grade. There are several reasons for this, which I won’t go into here. But today, some students in the bottom quarter of the graduating class at some law schools are simply not ready to be competent attorneys.
Early in my teaching career, some law schools (especially certain Tier 4 schools) had a high flunk-out rate. Their philosophy was, we will have very lenient admission standards, and to those who can make the grade despite their low predictors, great. They got an opportunity that they would not otherwise have had. As to those who flunked out (sometimes half the entering class), sorry, the Law was not for you. This weeding-out no longer occurs.
Grade inflation at the undergraduate level has also contributed to a decline in the skills and learning -- especially the reading and writing skills -- of those entering law school. Many law schools now have remedial programs or courses that ill-prepared first-year students are required or strongly encouraged to take.
This is why I do not favor dropping the LSAT requirement as part of the law school application process.
Another overlooked indirect benefit of the bar exam -- knowing that you have to pass it creates a powerful incentive to study more than what is minimally required, and to take core courses, not just the easiest non-required courses.
Do not read this as an indictment of law schools in general or specifically. They are all doing their best to turn out well-qualified graduates who can all pass the bar exam. Some of the grade inflation is due to pressures they cannot resist. In some cases, they have to admit applicants they would rather not. It would be great if we law professors could always give the grade we believe is deserved, but I’m afraid that ship has sailed.
Let’s not do away with the bar exam.
Ted Kionka