For Christmas this past year, my grandmother gave me a Law School Admission Test (LSAT) study book, “The LSAT Trainer” by Mike Kim. While it may seem odd, and not a traditional holiday gift, my grandmother knows I am planning on applying for law school once graduating from UO, which means taking the LSAT.
Those who have studied for, or have already taken the LSAT, know the intense studying that takes place over several months just to hope you get a good enough score for your desired law schools. But the work doesn’t stop there. Before becoming a lawyer, there are three years of law school and the dreaded bar exam.
The bar exam is a two day long test that covers all of the legal information learned throughout one’s time in law school. With this in mind, it comes as an interesting shock to read the Oregon Supreme Court’s recent decision regarding alternatives to the bar exam.
There are several arguments as to why the bar exam should be removed or at least provide students with other options: technical difficulties in an online world, a lack of students interested in taking the bar exam and pursuing law as well as the bar exam’s failure to accurately measure legal competence.
The University of Denver agrees, writing, “In short, despite claims to the contrary, the bar exam is not—and has never been—a valid measure of minimum competence and, therefore, cannot be defended as a mechanism for consumer protection.”
Similar to other standardized tests, students don’t like the bar, and it fails to accomplish what it sets out to do. A two day test isn’t a measure of your ability to defend a client during trial; it’s an endurance test to satisfy those who want to fill their pockets, as it financially disadvantages those without the same resources available to their peers. Bar exam study materials can cost upwards of hundreds of dollars with the actual bar exam costing another couple of hundred dollars, not to mention students must be financially stable enough to take the two days off.
Further, the bar exam perpetuates inequalities within the legal industry. According to the American Bar Association, only 5% of the national lawyer population were Black and only 5% were Hispanic in 2021. This is not representative of the diverse population within the United States that these lawyers may be representing. While these numbers should be on the rise, the bar exam may be preventing this from happening. Former Dean of Michigan State University College of Law, Joan Howarth, found that Black, Hispanic and other minority groups consistently score lower on the bar than White individuals.
On Jan. 11, the Oregon Supreme Court unanimously agreed on two alternatives to the bar exam. The decision was made to encourage potential and current law students to actually go on to practice law. The current lack of incentive may be in part due to the substantially high failure rate of the Oregon bar exam. In 2019, a quarter of all test takers failed the exam. One of the highest rates reached nearly half in 2016 at 42%.
So what are the alternatives?
While there are not many details available yet, one of the proposed alternatives is the Oregon Experiential Pathway. For those law students who choose this option, their last two years of law school would consist of more structured and experiential classes. At the end of these classes, the material learned would culminate into a capstone project evaluated by the Oregon State Bar Board of Bar Examiners (BBX).
The other alternative is the “Supervised Practice Pathway,” in which after graduating from law school, potential lawyers would spend nine to 12 months with an already licensed Oregon lawyer. Graduates would complete between 1,000-1,500 hours of apprenticeship. After the set amount of time, a report of the work completed during this time would be submitted to the BBX for review.
Oregon is not alone in the creation of these alternatives. Two other states, New Hampshire and Wisconsin currently offer their own alternatives. Both state’s models are similar to the Oregon Experiential Pathway, though Wisconsin’s alternative is only available at the University of Wisconsin-Madison.
Thus, while the proposed alternatives may serve additional purposes beyond their intended ones, there are several possible setbacks that would need to be addressed and solved for the new programs to succeed. As stated in the Oregon Alternatives to the Bar Exam Task Force, the programs are just proposals as of now, meaning numerous resources would need to be invested to ensure the programs are able to occur. Additionally, the task force should promote increased accessibility and equality by removing the current barriers of entry.
Ever since I realized I wanted to be a lawyer, I never imagined the possibility of not taking the bar exam. These new alternatives seem like a good idea — that is, only if they succeed in certifying more lawyers in the state of Oregon and can remove the unequal barriers to entry seen in the bar exam.
