Oregon State Bar Bulletin — NOVEMBER 2007
Parting Thoughts
Administering the Bar Exam
Why Are So Many Applicants Failing?
By Michael Moiso

Lore has it that in examining a bar applicant named Birch, Abraham Lincoln asked for a definition of a contract and a couple of other fundamental questions. Birch is said to have answered the questions correctly. Lincoln then escorted Birch down to the clerk’s office at the courthouse and once there, scribbled something on a piece of paper, which he enclosed in an envelope and handed to Birch, telling him to report to the Judge. Upon reading the note, the Judge was said to have smiled and issued the required certificate to practice law to Birch. The note from Lincoln read, "My dear Judge, The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He’s a good deal smarter than he looks to be. Yours, Lincoln."
—Len Y. Smith; "Abraham Lincoln as Bar Examiner," B. Examiner, Aug. 1982, 35, 37.

Lincoln figured that if Birch had studied for two years, he ought to know the law. Today, we turn that supposition upside down. A three-year law degree, and in most cases a stint as a law clerk, aren’t enough. Even if you were number one in your class at Harvard Law School, with a clerkship with a Supreme Court justice, you can be just as susceptible to failing the bar exam as the next person. Recently, Stanford Law School Dean Kathleen Sullivan failed the California bar exam. She is licensed in two other states and also taught at Harvard Law School. She is a poster child for how difficult the bar exam has become.

The national average for passing the bar exam for first-time takers is 60 percent. For repeat-takers, the passage rate drops to 50 percent the second time and 40 percent for a third time or more. These are alarming statistics for a test that is supposed to be a "rite of passage" after law school. Law school and clerkships are supposed to be the vehicles used to prepare one for the practice of law. The bar exam is only intended as a final test of one’s general knowledge of legal issues and rules of law. It was not intended to be the hurdle it has become for tens of thousands every year — a maze of confounding questions designed to trip up even the best and brightest.

I am not advocating that we abolish the exam. My point is that the bar exam should not be so difficult that four out of 10 law graduates fail. We need to change the test itself and the grading process.

The first change should be with respect to the Multistate Bar Exam. Multiple-choice questions are rarely practiced in law school, and too much weight is given to this style of testing. In most states, the MBE represents 50 percent of the applicant’s total score. Multiple-choice questions are difficult to discern, making it more of an issue-spotting deficiency for most applicants, rather than a matter of not knowing the law. We should either cut the number of MBE questions in half or give more weight to the essays and the Multistate Performance Test ("MPT") in the overall score. The MPT in particular should be given more weight and attention because it tests the applicant in the most lawyer-like manner. Unfortunately, the MPT in most states only counts for 12.5 percent of the overall score.

The second change should be to provide more latitude to the bar examiners when grading the essays and MPT. We need to improve the "final answer outline" used by the bar examiners. This final answer outline is the work of several top legal minds in any state, producing an outline format that is used to grade the essays and MPT. The problem is that the outlines limit the buzzwords examiners rely on to award points. If the applicant fails to use the precise buzzwords on the final answer outline, no points are awarded, no matter if the applicant identifies the correct rule. A broader approach would provide more leeway to the bar examiners, which in turn would greatly increase the chances for fair and equitable grading.

These two simple changes would make a huge difference. The bar exam would still be a difficult experience, but much less prohibitive. There is a lot we can do as lawyers to help change a testing system that has run amok. The very precepts of our legal code are founded on a fair and reasonable system. It is hard to argue that the system is fair with a national failure rate as high as it is. Let’s lend a helping hand to new members of the legal profession, not a hand that pushes them away.

Michael Moiso is co-author of Cracking The Bar Exam Code, a textbook and study system for bar exam applicants. He teaches law courses at Portland Community College and Clackamas Community College.

Editors note: Oregon’s pass rate for first-time exam takers over the past five years is 77 percent, significantly higher than national averages.

© 2007 Michael Moiso

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