A strange path for the bar exam

The California Supreme Court's announcement on Thursday of its verdict on several proposals with regard to the California Bar Exam is puzzling because it simultaneously rejects meaningful reform and also rejects staying with the safe path of the status quo. It approves a risky plan to shift to a proprietary company to produce California bar questions. And it leaves uncertain whether the State Bar can go forward with its terrible idea of rewarding those who take a practice exam with up to 40 extra points when they actually take the bar exam.

There were truly innovative proposals before the California Supreme Court. One would have created an alternative to the bar exam. It would have allowed those graduating from law schools accredited by the American Bar Association or the California State Bar to "engage in a period of supervised practice and generate a portfolio of work product while advising and representing actual clients. That portfolio would be subsequently graded by a special committee to determine whether the applicant has demonstrated the minimum competence to practice law."

The California Supreme Court rejected this proposal because it is not a "general bar exam" as required by law and because of its concerns that about "fairness, validity, and reliability as a measure of an applicant's competence." Rather than approve a pilot program to assess whether this alternative path measures competence as well as or even better than the bar exam, the California Supreme Court emphatically rejected it.

There was another proposal that would be innovative for California, but already is followed in the vast majority of other states: allow reciprocity for lawyers licensed in other jurisdictions to be admitted without needing to take the California Bar exam. The California Supreme Court rejected this saying that California Business and Professions Code specifies how lawyers licensed in other states can be admitted. The requirement that out-of-state lawyers must take the Attorneys Examination or the general bar exam serves no purpose other than to make it difficult for out-of-state attorneys to move to or practice in California. Its sole goal is to reduce competition. At the very least, the California Supreme Court should have recognized this and urged the California legislature to change the law.

The California Supreme Court could have adopted the Uniform Bar Exam. This unquestionably would have met the statutory requirement for a general bar exam. Thirty-eight states now use the UBE. It facilitates inter-state mobility as individuals can use their scores in any UBE state, though each state sets its own passing level. But the California Supreme Court did not take this approach either.

The California Supreme Court also rejected lowering the "cut score" for passing the bar, even though California's is set higher than almost any other state. There is no evidence that the higher cut ensures competence to practice law. The vast majority of those who would benefit from the lower cut score pass the bar on the second try. All the higher cut score does is impose on them the great emotional and financial costs of taking the bar exam again.

Having rejected innovation, the California Supreme Court might have followed the tried and true path of relying on the National Conference of Bar Examiners (NCBE) to continue to provide it the multiple choice questions which are an important part of the bar exam. For decades, California has used the Multistate Bar Exam produced by the NCBE. Next year, the NCBE will be shifting to the NextGen bar, which it has been working on for years.

But the California Supreme Court rejected this as well.  Instead, it accepted a recommendation to shift to having a California specific bar exam developed.  Although it does not explicitly say so, in practical reality this means it is approving having a proprietary company, Kaplan, providing its multiple choice questions. Kaplan's business is about preparing students for standardized tests, not writing those tests. As best anyone can tell, the California Bar signed an $80 million contract with Kaplan as a way to save money. Astoundingly, the use of Kapan is to begin with the February 2025 bar exam even though no one has seen any sample materials from Kaplan and even though the NCBJ takes years to prepare its exams. 

The California Supreme Court did not rule on one aspect of the California Bar's proposal: to provide those taking a practice bar exam on Nov. 8 or 9 up to 40 points when they actually take the bar exam. This is an idea that makes no sense. It will mean that there will be applicants with exactly the same score, but some will be deemed to pass and others to fail based on who participated in the practice bar exam. That is manifestly unfair. It also is inconsistent with the central rationale for having a bar exam: measuring minimum competence to practice law. Someone who otherwise would be deemed to fail the bar will be found to have passed solely because they helped the bar by taking the practice exam.

The bar exam is of enormous importance to those who want to be lawyers. It is deemed a crucial part of ensuring competent lawyers. Yet, serious questions have been raised about the bar exam and whether it really measures competence to practice law. This should be a time for innovation exploring other pathways to practice, more reciprocity, new types of questions, the Uniform Bar Exam. But if the California Supreme Court was not going in that direction, it should have stayed with tests produced by the very experienced National Conference of Bar Examiners. It is hard to read the California Supreme Court's order as other than the worst of all worlds.