By Elliot Anderson
As the old joke goes, “the only time most law students pass a bar is when they are admitted to the bar to practice law, after taking a state’s bar exam.” Rooted in middle-ages England, the “bar” served as a physical barrier in courtrooms, designed to separate attorneys and the court from the general public. This physical barrier still exists today, requiring the passage of a bar exam in order to practice law—and cross this courtroom barrier.
Recently, the Las Vegas Review Journal published an article about changes to the Nevada Bar Exam, entitled “Nevada lowers bar for state legal exam as passage rate skids.” The article discussed falling bar passage rates and declining competency to practice law generally. Most substantively, the Nevada Supreme Court rid the exam of a topic that was the bane of Nevada applicants for several decades (cue the back-in-my-day jokes about studying for commercial paper). Truth be told, commercial paper, the law of negotiating promissory notes (think checks and mortgage notes) is not an area that most attorneys practice in and has less relevance to the public than ever with the advent of modern financial-transfer systems. For this reason, the court smartly axed this topic, which distracted bar applicants from studying topics more relevant to the public on a day-to-day basis.
These recent actions only involved lowering standards. Still, when faced with lowering standards for a test designed to protect the public from incompetent attorneys, are there not other actions the court could take, in its supervisory role of the State Bar and the Board of Bar Examiners, to increase bar passage rates in addition to lowering standards? From my experience working on education policy at the Nevada Legislature, I answer yes; I’ve often found that problems and their causes are like a puzzle: there are many pieces and actors that need to fit together to put together a rosy picture—and rarely any silver bullets. From my observations throughout my nascent legal experience, I’ve developed several thoughts on improving bar passage rates without lowering standards. All legal actors, including aspiring bar applicants, law schools, policymakers, and the State Bar can do more to improve bar passage rates, without lowering standards further.
The Role of Bar Applicants
Bar applicants hold many of the keys to their own success: working harder, making smarter choices during law school, and developing a better attitude about the bar exam. While “working hard” can be a cliché, it needs to be said: a significant number of applicants do not take the bar exam seriously. I’ve lost track of the number of applicants who told me “I only need to study for a D.” On a different note, I haven’t lost track of the number of attorneys who advertise that they only studied for a D: none. Bar applicants also need to set themselves up for success by making better choices in law school. Oftentimes, many students take less-difficult classes rather than subjects that will appear on the Nevada Bar Exam—a crucially bad decision. If an applicant doesn’t take a class on a subject that appears on the bar exam, the applicant needs to learn the subject in a shortened period of a few days during bar exam studying, which is a tall order. And when applicants take bar exam classes in law school, they need to ignore the advice they receive from upperclassmen and listen to the advice applicants receive from professors: brief every case throughout law school and create your own outlines. Briefing every case and outlining leads to maximum memory retention of critical material, which can then be refreshed quickly while studying for the bar exam. Finally, bar applicants need to find a way to embrace this challenge and enjoy the experience of tackling a major life goal, an incredibly fulfilling challenge and delayed-gratification that many people do not receive.
The Role of Law Schools
Law students need to be set up for success by law schools, as well. Law schools across the country recently have put less emphasis on bar exam subjects throughout law school. The main six subjects on the bar exam, which are un-coincidentally the most important subjects to protect the public, are not taught as much as the subjects used to be taught. Those subjects, torts (think personal injury), contracts, constitutional law, property, evidence, civil procedure (court rules), criminal law and procedure, used to have two semesters of coverage. Personally, I had two semesters of some of these subjects but not others, and I had a harder time on the latter classes when taking the bar exam. Now, most law schools only offer two semesters of one of the topics. Instead, law schools have offered interesting classes, most of which will not ever be used by most attorneys in practice and are not on the bar exam. If law schools do not give full coverage of topics on the bar exam, how can they be surprised when their graduates have lower rates of passage? I will admit that I find it hard to suffer the complaints about the difficulty of the bar exam from law schools, when most law schools do not give these main subjects the comprehensive coverage the subjects deserve. It is intuitive: if a law school does not fully teach a bar exam subject, that school’s applicants will not do as well on that subject.
A Charge to the Legislature
The Nevada Legislature should help improve bar passage rates by dialing down the pressure many applicants face: failing and not being able to pay off student debt, not to mention working during law school and while studying for the bar exam. In 2009 as a legislative intern, I took notes as the Legislature inadvertently added to this pressure by effectively doubling law school tuition, by withdrawing state support during the economic downturn. The Legislature partly based this decision upon the perceived ability to law students to be able to quickly find a job and pay off their student debt, relying on unintentionally misleading statistics. (Are there any other kind?) These statistics counted a part-time waiter, with a J.D., as legal employment after school. The Legislature and Congress need to address crushing student loan debt for a number of reasons. As for law school debt, reducing debt will lead to less pressure while taking the exam and more attorneys for the poor who often can’t afford the legal bills attorneys charge to satisfy their debt. Furthermore, taking out fewer loans will obviate the necessity of finding employment during law school and during bar exam study, which will lead to more attention on academics.
The Role of the State Bar and the Nevada Supreme Court
The Nevada Supreme Court and the State Bar of Nevada, through the Board of Bar Examiners, can take steps to foster competition and improve the work habits of bar applicants. At least one state, Arkansas, releases the name of the person who scored the highest on the bar exam. The applicant who receives this distinction will have a public acknowledgement of their work ethic, if not intelligence, and an impressive resume line. The State Bar should adopt this approach, with modifications. Specifically, the State Bar should release the top five scorers and comp the top five scorers with a year of paid bar dues after being admitted.
The Arkansas State Bar’s approach to competition is similar to what law schools and law firms across the country do during law school: encourage fierce competition to receive the highest grade and the best jobs. Law students receive “CALI” or “AmJur” awards for the top grade in each class, which regularly are put on resumes and legal biographies. In my experience, students work harder in law school while seeking out these awards and achieve more than they would have without this competition (students study for the A rather than the D). This competition is truly a lift-all-boats approach on the bar exam because theoretically, if every applicant scores high enough on the objective multiple-choice portion of the bar exam, everyone will also pass the subjective essay portions of the bar exam as well due to statistical scaling.
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We should all ask ourselves what we can do to improve education in Nevada generally and bar exam results specifically. While these approaches are not silver bullets, they could have a strong cumulative effect on bar passage rates without lowering bar passage standards too much, which we should resist. Lowering bar passage rates too much could expose the public to incompetent attorneys and life-changing bad legal advice. Even if these ideas do not help, they will probably not hurt the legal profession; it seems implausible these ideas will hurt bar passage rates. And as a bonus, most of these ideas involve little cost.
Elliot Anderson is a Democratic assemblyman. He was elected in 2010. He took the Nevada bar in February 2016 and was admitted to the bar in May 2016. He recently took the Utah bar exam.
