By: Phoebe Howe | Senior Notes Editor

November 20, 2023

—

For third-year law students, the bar exam culminates years of law school and ten weeks of intensive study. Yet the mechanical exam is incompatible with a profession where lawyers rely on strong interpersonal and communication skills. And no evidence proves that the exam ensures minimum competence or protects the public. Instead, test takers face a redundant, dehumanizing exercise that is rooted in elitism and turns on one’s wealth. In response to the bar exam’s deficiencies, Vermont should reform its Rules of Admission to adopt one or more “diploma-plus” pathways to bar admission.

Bar admission practices arose from elitist origins. Starting in the early 20th century, the American Bar Association engaged in a systematic effort to maintain an elite cadre of lawyers through tools such as the bar exam and law school accreditation standards.[1] This desire for “professionalism” was indisputably mixed up with racist motivations.[2] Leaders within the legal community held nativist views, were made aware of the discriminatory impacts of their actions, and continued to alienate poor, immigrant, and non-white law students anyways.

While blatant discrimination is less rampant than 50[3] or 100[4] years ago, the bar exam perpetuates systemic racism today. In 2021, 85% of white law school graduates passed the bar exam on their first try, whereas only 61% of Black graduates did.[5] Two broad theories offer insight into how systemic racism creates the bar passage gap between white and minority test takers. The first theory is that as long as the racial wealth gap persists, the bar exam will continue to privilege white test takers over test takers of color. The second theory is that implicit bias in law school and the pressure of the bar exam may evoke “stereotype threat” that hinders students of color from performing at their full potential.[6]

The bar exam perpetuates systemic classism. The ten-week period between law school graduation and the July bar exam is expensive, and graduates who attempt to work and study simultaneously do markedly worse on the exam.[7] In addition to living-related costs, graduates must budget for prep courses (starting at $2,000)[8] and bar application costs (which can be $1,000 or more).[9] Moreover, states generally hold bar exams in population centers,[10] meaning rural test takers must also pay for travel, lodging, meals, and childcare. Given the staggering costs associated with the bar exam, it is no surprise that graduates with more financial resources do better on the test.[11] Bar passage has become a proxy for wealth.

In addition to perpetuating systemic racism and classism, the bar admission process exacerbates access to justice issues. The legal community designed bar admission requirements, including the bar exam, to keep the bar small and maintain high prices.[12] Although bar admission operates with the goal of consumer protection,[13] excessive requirements may harm consumers by limiting competition[14] and increasing the cost of services.[15] Vermont is not immune from this problem. The state strives to provide free or low-cost advice and representation on critical matters,[16] but thousands of Vermonters go unrepresented in serious civil proceedings.[17] And due to lawyer shortages in rural areas,[18] some Vermont criminal defendants receive low-quality or delayed representation.[19]

Furthermore, the bar exam does not ensure attorney competency. The National Conference of Bar Examiners’ organizational vision includes fostering a “competent” legal profession.[20] Yet, the multiple-choice and essay portions of the exam test memorization skills more than legal knowledge and analysis. Memorization is not part of competent legal practice.[21] Competent lawyers double-check their assumptions, do additional research, and talk to colleagues. Legal practice revolves around handling ambiguity and making judgment calls. Multiple-choice questions and formulaic essays cannot reflect this reality.

A final reason for Vermont bar admission reform is that Vermont and its legal workforce face troubling demographic challenges. First, Vermont’s lawyers are aging. Vermont has the third-highest median age in the country,[22] and half of Vermont’s lawyers are over 55.[23] Many retiring lawyers cannot find young graduates to take over their businesses.[24] Second, Vermont is one of the least racially diverse states in the country.[25] Assuming that lawyers of color are as underrepresented in Vermont as they are nationally,[26] there may be as few as 11 Black lawyers, 15 Hispanic or Latinx lawyers, and three Native American lawyers out of Vermont’s 2,198 total lawyers.[27]

Other states have forged the path toward bar admission reform. Wisconsin allows bar admission by diploma privilege: if a student successfully graduates from one of the state’s law schools, there is no bar exam requirement.[28] New Hampshire’s Daniel Webster Scholar Honors Program adds experiential learning to a standard law school curriculum and eliminates the traditional bar exam.[29] Oregon is about to implement experiential and supervised practice programs.[30]

Vermont should build on other states’ work and adopt one or more “diploma-plus” bar admission pathways:

• A diploma-plus-GPA pathway would build on the strength and simplicity of Wisconsin’s diploma privilege. The Board of Bar Examiners should work with Vermont Law and Graduate School to set a GPA requirement that guarantees minimum competence. Instead of pure diploma privilege, the GPA requirement is necessary because Vermont Law and Graduate School administrators are not confident that the school’s 2.3 GPA requirement for graduation adequately screens for minimum competence.[31] The GPA calculation should include only required courses, most of which are curved, to avoid concerns about grade inflation.[32]
• An experiential program based on New Hampshire’s Daniel Webster Scholar Honors Program[33] would allow students to complete bar admission requirements via practical classes. The program would amount to a rigorous “two-year bar exam” with frequent assessments[34] and a final presentation to the Board of Bar Examiners.[35] Vermont stakeholders have expressed interest in an experiential program because lawyers find it difficult to train new hires and want practice-ready graduates.[36] Vermont Law and Graduate School faculty and administration[37] and Vermont’s Joint Commission on the Future of Legal Services[38] agree that Vermont should consider experiential learning as an alternative licensure path.
• A supervised-practice pathway would allow bar applicants to establish competence by completing a certain period of paid, supervised work. Other professions, such as the medical field, rely heavily on the apprenticeship model, as did the legal profession before the standardization of law schools.[39] Applicants would complete a certain number of hours and compile a portfolio of work product to present to the Board of Bar Examiners.[40]

As rising awareness of the bar exam’s elitist origin and gatekeeping effect spurs the national bar admission reform movement, many states seek to implement permanent reform measures. By reforming bar admission with diploma-plus pathways, Vermont can simultaneously eliminate discriminatory bar admission practices and serve the public with a competent attorney workforce that more accurately reflects the diversity of our communities.

 

 

[1] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 96–97 (1983).

[2] Id. at 92; Although the European immigrants of the early 1900s would be considered white today, at the time “whiteness” was narrowly construed to include only people of Anglo-Saxon heritage and Protestant religious beliefs. Thus, racism is an appropriate term to describe anti-immigrant efforts. Xenophobia: Closing the Door, The Pluralism Project, Harv. Univ., https://pluralism.org/xenophobia-closing-the-door (last visited Mar. 13, 2023).

[3] For example, South Carolina abolished reciprocity in 1972 right after a Black lawyer from Oklahoma applied for reciprocal admission. Richardson v. McFadden, 540 F.2d 744, 746–47 (4th Cir. 1976).

[4] Adjoa Artis Aiyetoro, Truth Matters: A Call for the American Bar Association to Acknowledge Its Past and Make Reparations to African Descendants, 18 Geo. Mason U. Civ. Rts. L.J. 51, 72 (2007).

[5] ABA, Summary Bar Pass Data: Race, Ethnicity, and Gender (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2022/2022-bpq-national-summary-data-race-ethnicity-gender-fin.pdf.

[6] Deborah Jones Merritt, Carol L. Chomsky, Claudia Angelos, & Joan W. Howarth, Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg L. (July 20, 2021), https://news.bloomberglaw.com/us-law-week/racial-disparities-in-bar-exam-results-causes-and-remedies. Results from a 2021 AccessLex study of over 5,000 bar exam takers supports this conclusion. Email from Deborah Jones Merritt, Professor, Ohio State University Moritz College of Law, to author (Jan. 2, 2023, 08:10 EST) (on file with author) (interpreting statistical analysis in AccessLex Inst., Analyzing First-Time Bar Exam Passage on The UBE in New York State 81 (2021), https://www.accesslex.org/NYBOLE).

[7] Logan Cornett & Zachariah DeMeola, The Bar Exam Does More Harm Than Good, Inst. for the Advancement of the Am. Legal Sys. (Aug. 2, 2021), https://iaals.du.edu/blog/bar-exam-does-more-harm-good; AccessLex Inst., supra note 6, at 15.

[8] E.g., Vermont Bar Review Course, Kaplan, https://www.kaptest.com/bar-exam/courses/vermont-bar-review (last visited Nov. 5, 2023).

[9] Nat’l Conf. of Bar Exam’rs & ABA Section of Legal Educ. & Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 34–35 (2021).

[10] For example, Vermont often holds its exam in Burlington. Admission to the Vermont Bar, Vermont Judiciary, https://www.vermontjudiciary.org/attorneys/admission-vermont-bar (last visited Nov. 5, 2023).

[11] AccessLex Inst., supra note 6, at 38.

[12] See George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Legal Educ. 103, 147 (2003) (discussing effect of law school accreditation on access to and affordability of legal services).

[13] Interview with Beth McCormack, Dean, Vt. L. Sch., in South Royalton, Vt. (Sept. 19, 2022).

[14] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 5 (2022).

[15] Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429, 441 (2001).

[16] Vt. Access to Just. Coal., Renewing Vermont’s Commitment to Access to Justice 1 (2020), https://legislature.vermont.gov/ (search for “Renewing Vermont’s Commitment to Access to Justice” report).

[17] In one year, the need included about 1,500 tenants facing eviction, 4,000 customers facing credit-card collections, and 1,300 spouses seeking a divorce. Id. at 2.

[18] Justin Trombly, Northeast Kingdom Defenders Worry Hiring Problems Harm Clients’ Rights, VTDigger (Sept. 8, 2019), https://vtdigger.org/2019/09/08/northeast-kingdom-defenders-worry-hiring-problems-harm-clients-rights/.

[19] See, e.g., id. (describing how client’s plans to expand nonprofit organization were delayed when lawyer allegedly failed to address misdemeanor charge); Justin Trombly, NEK Judge Throws Out Drug Conviction, Rules Public Defenders Failed, VTDigger (July 26, 2021), https://vtdigger.org/2021/07/26/nek-judge-throws-out-drug-conviction-rules-public-defenders-failed/ (describing how court vacated client’s drug conviction for ineffective assistance of counsel).

[20] About NCBE, NCBE, https://www.ncbex.org/about/ (last visited Nov. 5, 2023).

[21] Merritt & Cornett, supra note 14, at 72.

[22] Median Age in 2021, StatsAmerica, https://www.statsamerica.org/sip/rank_list.aspx?rank_label=pop46&ct=S09 (last visited Nov. 5, 2023).

[23] Vt. Bar Ass’n, 2020 VBA Members by Age (2020) (on file with author).

[24] Vt. Joint Comm’n on the Future of Legal Servs., Final Reports & Recommendations of the First Year Study Committees 45 (2015) (on file with author); see, e.g., M.D. Drysdale, Where Have All the Lawyers Gone?, Herald of Randolph (Aug. 13, 2015), https://www.ourherald.com/articles/where-have-all-the-lawyers-gone/.

[25] Wilson Ring, Census: Minority Population Growing in VT, 2nd Whitest State, AP (Aug. 12, 2021), https://apnews.com/article/race-and-ethnicity-census-2020-vermont-721d8201122a857b4565b4a37bd77d24.

[26] Nationally, Black (4.5% of lawyers and 13.4% of population), Hispanic or Latinx (5.8% of lawyers and 18.5% of population), and Native American lawyers (0.5% of lawyers and 1.3% of population) remain underrepresented. The share of Asian American lawyers is about the same as the general population (5.5% of lawyers and 5.9% of population), and white lawyers are dramatically overrepresented (81% of lawyers but only 60% of population. ABA Survey Finds 1.3M Lawyers in the U.S., ABA (Jun. 20, 2022), https://www.americanbar.org/news/abanews/aba-news-archives/2022/06/aba-lawyers-survey/.

[27] Calculations on file with author.

[28] Wis. Sup. Ct. R. Ch. 40.

[29] N.H. Sup. Ct. R. 42.

[30] Licensure Pathway Development Committee, Or. State Bar, https://lpdc.osbar.org (last visited Nov. 5, 2023).

[31] Interview with Beth McCormack, supra note 13; Vt. L. & Graduate Sch., Student Handbook 38 (2022).

[32] Vt. L. & Graduate Sch, supra note 31, at 35.

[33] Daniel Webster Scholar Honors Program, Univ. of N.H. Franklin Pierce Sch. of L., https://law.unh.edu/academics/daniel-webster-scholar-honors-program (last visited Nov. 5, 2023).

[34] John Burwell Garvey & Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke Forum for L. & Soc. Change 101, 122 (2009).

[35] Alli Gerkman & Elena Harman, Ahead of the Curve—Turning Law Students into Lawyers 10 (2015), https://iaals.du.edu/sites/default/files/documents/publications/ahead_of_the_curve_turning_law_students_into_lawyers.pdf.

[36] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[37] Interview with Jessica Durkis-Stokes, Professor, Vt. L. Sch., in South Royalton, Vt. (Sept. 1, 2022); Interview with Beth McCormack, supra note 13.

[38] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[39] Stevens, supra note 1, at 3, 24.

[40] Oregon plans to require a portfolio of non-privileged work product. Memorandum from the Alternatives to the Bar Exam Task Force to the Oregon State Board of Bar Examiners 23 (June 18, 2021), https://taskforces.osbar.org/files/Bar-Exam-Alternatives-TFReport.pdf.