Barros Guest Post: Allow Students To Take Bar Exam After Two Years

The following is a guest post by Ben Barros of Widener Law School:

Legal education is being pressed to reform.  The existing state of regulation by the ABA and state bar associations tends to lock schools into current modes of education.  If we are going to achieve change in legal education, then in at least some contexts we may need to first reform some of the regulations that shape the system that we have now. 

I propose a simple regulatory reform that could have a large impact on legal education.  In our current system, law students must graduate from law school before they can sit for the bar exam.  In the system I propose, law students would be able to sit for the bar exam in the summer after their second year. 

As in the current system, students could not actually be admitted to the bar until after they earn their J.D., but they would be able to take the bar exam after completing two years of the three-year J.D. program.  More precisely, students would be able take the exam after completing sixty credits, or roughly two-thirds, of the credits required for a law degree.  Students in part-time programs, of course, would need more than two years to get to sixty credits.

Law school teaches more than one thing.  For our purposes, we can divide the aims of law school into two components:  substance and skills.  Lawyers need to know certain fundamental legal concepts – this is the substance that law schools teach.  They also need to have certain skills.  As things now stand, law schools try to teach both substance and skills over the course of three years.  Legal education can be fairly criticized for not teaching enough skills in these three years, though many schools are far more innovative on this front than some uninformed commentators would have us believe.

One reason why skills are under-taught may be that they have no clearly-defined place in the law school curriculum.  An advantage of allowing students to take the bar exam after their second year is that the law school sequence would be more clearly divided into segments where substance and skills can be separately emphasized.  This already happens to a certain degree – other than legal writing in the first-year, a good amount of skills-based education finds itself in the third-year of law school.  To the extent this division occurs now, it is more the result of happenstance than design.

In every state, the bar exam tests knowledge of core areas of legal doctrine – the essentials of the substance taught in law school that every lawyer is expected to know.  The vast majority of this doctrine is already taught in the first two years of law school.  Letting students sit for the bar exam after two years would formally give these basics a home in the law school sequence.  If students have already sat for the bar exam, the third year would become the natural home for skills training and specialized doctrinal courses.  This already happens to a certain extent, but a shift in bar exam timing would help lead to a more formal demarcation in the law school curriculum.

Shifting the timing of the bar exam would have a host of other advantages beyond encouraging an increase in skills-based education:

• It would place the bar exam closer in time to when law students cover most of the key bar exam subjects.
• It would give students two opportunities to take the bar while they were still in school – the July after the second year and the February of the third year.  This would allow schools to offer bar-exam oriented academic support to students who did not pass the first time.
• It would help students obtain employment more quickly, because the vast majority of students could market themselves as having passed the bar before graduation.
• It would eliminate the limbo in which many recent graduates find themselves under the current system, with no job at graduation but with employers waiting until the bar results are announced to hire entry-level lawyers.
• For those who have secured employment before graduation, it would reduce the opportunity costs of waiting until after the July bar exam to start work.

Allowing students to take the bar after two years would require a simple change in state bar rules.  My home state of Pennsylvania, for example, already has separate rules for sitting for the bar exam and admission to the bar.  Rule 203(a)(2)(i) currently requires the “completion of the study of law at and receipt without exception of an earned Bachelor of Laws or Juris Doctor degree” from an accredited law school as a requirement for sitting for the bar exam.  This could be altered to “completion of 60 credits of the study of law towards a Bachelor of Laws or Juris Doctor degree.”  The current language requiring the completion of study of a law degree could be moved to a new section of Rule 203(b), which governs admission to the bar.  The result would be a system that allows students to take the bar after two years, but would still require graduation from law school for admission to practice.

States considering adopting this proposal might be concerned about a flood of bar applicants from other states that still require graduation from law school to sit for the bar exam.  This concern could be addressed with a reciprocity system.  Pennsylvania, for example, could adopt the proposal with a modification that allows two categories of students to take the bar after two years:  (1) students from Pennsylvania law schools and (2) students from law schools in other states that allow students from Pennsylvania law schools to take the bar after two years. Under this approach, if New Jersey allowed students from Pennsylvania law schools to sit for the New Jersey bar after two years, students from New Jersey law schools could sit for the Pennsylvania bar after two years.  Students from schools in non-reciprocal states could still take the Pennsylvania bar, but only after graduation from law school.

We had our commencement last month, which reminded me of another advantage of allowing students to take the bar after two years.  As things stand, law school graduation is a happy occasion, but one that takes place in the shadow of the impending bar exam.  A few days after graduation, I saw a group of our recent graduates at the law school during a break from bar review classes.  They were not, it is safe to say, as happy as they had been just a few days earlier, or as happy as they would have been if the bar already was behind them.

-Ben Barros

Comments

[Alfred Brophy]

Ben--interesting proposal. I'm pretty sure that New York used to allow people who'd completed at least 2.5 years (perhaps even 2 years) of law school to take the bar exam. I dimly recall a classmate or two taking the bar the semester before we graduated.

[Anon]

Very interesting, and this could make skills training more relevant. There's a tangentially-related post on Prawfs: http://prawfsblawg.blogs.com/prawfsblawg/2012/06/the-peoples-law-school.html.

[Anon]

Oops. Try: http://prawfsblawg.blogs.com/prawfsblawg/2012/06/the-peoples-law-school.html

[Ashley Casas]

Great proposal Ben. I agree to what you plotted in that proposal, although we all know that this may take some time to be approved. As the higher board may take consideration of so many things. Anyway, I would just want to give you a +1 on this very well written proposal. Hope in time, this gets approved and benefit many upcoming law graduates!

[Guest]

I like the theory behind the proposal, but I reject one of its unspoken premises. The proposal assumes that students who cannot find meaningful summer work after 2L year and/or who cannot pass the bar exam on the first try deserve a helping hand. On the contrary, these are the students who should not be in law school in the first place. With the glut of lawyers in the world, no one should be making it easier for future sub-par attorneys to get licensed.

[Michael Duff]

As an academic support director I'm concerned about the impact that studying for the Bar in the second year (or earlier) could have on the academic performance of some students. I'm not necessarily talking about impact on the third year. My sense is that there would be "prep creep" downward into the first and second years. On the one hand, maybe that's not such a bad thing - in my experience far too many students don't have the pending Bar exam "event" sufficiently affixed in their field of consciousness as they are proceeding through law school. Maybe the potential of sitting for the Bar in the second year would garner appropriate increased attention to the Bar exam. On the other hand, I know full well that the "anxious type" of student is going to obsess on the Bar exam rather than on the delivery of instructional material as decided upon by their professors. Is that a good thing? Personally, I don't like to engage in arguments with Bar-Bri outlines while teaching my courses. I also wonder about the impact on a student of a second year Bar failure. Roughly 95% of all takers will pass the Bar by the 3rd attempt. But a second year failure may prompt a student to leave law school altogether. While that is an outcome "Guest" would seem to prefer, I do not. I don't know yet how I come down on the proposal but I would be very cautious about these kinds of ramifications.

[Ben Barros]

Michael, thanks for this comment. I worry a little bit about the same thing. I think, though, that the advantages outweigh the downsides for this group of students. I think that earlier and more concentrated bar focus would be a good thing, and I think that having the exam closer in time to the study of the major bar subjects would be an advantage for all students. I'm also skeptical of a second year bar failure leading a student to leave law school. After two years, most students are committed to finishing. And, for the record, I agree with you on Guest's position - I do not want these students to drop out of the process. I also disagree with Guest's assumption that people who have difficulty with the bar are likely to be "sub-par" attorneys. Law school exams and the bar test only a narrow subset of the skills necessary to be a good lawyer.

[Anon]

Many students don't know which state they will practice in after their second year. And how would summer jobs work with this proposal? Second year summer is an important summer for students who work in law firms.

[Ben Barros]

Fair questions. How many students are uncertain after their second year depends a lot on context - at some schools, most people know where they will go pretty early on. It doesn't seem to me that uncertainty among some students should hold back students who have a good idea where they plan to practice. Under this proposal, students could also take the bar exam in the February of their third year as their plans come together. The summer job picture would probably change a bit. For some people, work experience in the third year would take on greater importance, though I recognize this would present problems for students who want to practice somewhere other than where they go to law school. There is a bit of a window for summer work after the bar. Some students could also work while they are preparing for the bar. A number of my friends from law school who had clerkships lined up were summer associates at law firms the summer they studied for the bar, and it worked fine for them. Finally, the option of taking the bar in February of the third year would remain for people who wanted to focus on work in the second-year summer.

As an additional comment on Michael's points, I think that the opportunity to offer academic support to students who have failed the bar while they are still in law school is a big advantage.