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Bar Exam?

  • Writer: WULR Team
    WULR Team
  • Mar 18
  • 4 min read

The Declining Legitimacy of the Bar Exam: States Look for Alternatives

 

Published March 18 2025

Analysis by Kiana Tu


Wisconsin, Oregon, and Washington do not require passing the bar exam to become a practicing attorney. Other states, such as Utah, California, Minnesota, Arizona, Nevada, and South Dakota are exploring alternative pathways than the bar exam to licensure (1). More recently, The Utah Supreme Court has decided not to require the bar exam, enabling law graduates to obtain licensure without taking the bar exam (2). The American Bar Association (ABA) oversees law school accreditation. However, state courts and other regulatory institutions govern new lawyer licensure (3).


The COVID-19 pandemic prompted many states to reconsider the need for the bar exam in 2020 since bringing large groups of people together in one room posed a significant risk of spreading the virus. Thus, the notion that the bar exam wasn’t a necessary indicator for students to begin practicing law developed. In November of 2023, Oregon introduced an apprenticeship pathway for law school graduates that eliminates the need to take the bar exam(4). Washington followed suit in March, implementing both an apprenticeship program and a skills-based coursework option that also bypassed the bar exam (4). As of late, the Utah Supreme Court has introduced a plan to allow law students from ABA-accredited law schools to practice law pending 240 hours practicing under a licensed attorney, along with specific coursework and a written exam similar to the structure of the current national bar exam (5). The Utah Court will reconvene on December 19th and finalize the adoption of the proposal upon public approval. gathering public comment on the proposal (6). There have been many instances where states are looking away from the bar exam in pursuit of alternative ways to license lawyers. The bar exam has introduced many dilemmas for the law profession and these alternative ways to licensure may be just what the profession needs.


Law practitioners are dwindling in numbers, creating so-called “legal deserts” where children and lower-income adults struggle or are unable to secure legal representation (1). The financial burden of attending law school and the resources required to succeed on the bar exam have resulted in a situation where many lawyers cannot afford to represent clients without charging significant fees. Thus, many underrepresented communities and individuals go without advocacy or legal representation. States could mitigate these challenges by ensuring there are alternate routes to becoming a licensed, practicing attorney. There is little to no credible evidence supporting that the bar exam is an effective measure of a lawyer's competency. Many law students have said that the bar exam does not prepare them to be practicing attorneys and that more real-world experience in courtrooms and legal institutions is a more effective way to educate students about the processes that go into being a practicing lawyer (7). Alternative licensure is viewed by many states as a way to encourage graduates to enter fields with a shortage of specialists or to regions where legal representation is scarce, such as rural or underserved communities (1).


The legitimacy of the bar exam has been long debated, questioning its ability to test law students on their aptitude, the test’s racial disparities, and its disparate impact on economically disadvantaged graduates. The exam data reveals persistent racial disparities in bar pass rates. According to ABA statistics, in 2023, the first-time pass rate was 84% for white exam takers, 71% for Hispanic examinees, and 58% for Black test takers.3 Critics of the bar exam argue that, in most states, it fails to assess the essential skills needed to practice law, especially those involving direct client interaction, such as negotiating or advising individuals dealing with issues like incarceration, divorce, bankruptcy, or other high-stress circumstances (4). It is not surprising that multiple-choice tests are unable to assess the skills necessary to be a good lawyer. Standardized tests like these have little ability to grade human behavior and new lawyers will benefit more from hands-on practice and supervision.


The bar exam goes beyond the implications of access to legal institutions. The exam effectively prevents undeveloped communities from gaining access to licensed attorneys. Particularly, it limits the pool of available lawyers in underserved communities, especially in rural or low-income areas where there may already be a shortage of legal professionals. If the bar exam remains a barrier to entering the profession, it could further exacerbate the access-to-justice problem. Law school has put many students in debt, the test to get licensed should not impede those passionate about advocating for others. There needs to be an acknowledgment of the various feasible ways to demonstrate competence. It is time to think creatively about alternative ways to assess law-student-readiness to ensure equitable access to legal representation.

 

  1. Joffe, Marc. “States Pursue Alternative Licensing Pathways for Lawyers.” Cato.org. Cato, March 28, 2024. https://www.cato.org/blog/states-pursue-alternative-licensing-pathways-lawyers.

  2. . Sloan, Karen. “Bar Exam Alternatives Gain American Bar Association Backing.” Reuters, May 17, 2024. https://www.reuters.com/legal/government/bar-exam-alternatives-gain-american-bar-association-backing-2024-05-17/. 

  3. Lawyer licensing. American Bar Association. (n.d.). https://www.americanbar.org/groups/legal_services/flh-home/flh-lawyer-licensing/.

  4. Bolstad, Erika. “Law School Grads Could Earn License through Work rather than Bar Exam in Some States.” Stateline.org. Creative Commons, July 26, 2024. https://stateline.org/2024/07/26/law-school-grads-could-earn-license-through-work-rather-than-bar-exam-in-some-states/.

  5. Sloan, Karen. “No Bar Exam? Utah Considers It.” Reuters.com. Reuters, November 5, 2024. https://www.reuters.com/legal/government/no-bar-exam-utah-considers-it-2024-11-05/.

  6. Thorton, Azya. “Utah Supreme Court Considers Alternative to Bar Exam.” Tba.org. TBA Law Blog, November 6, 2024. https://www.tba.org/?pg=LawBlog&blAction=showEntry&blogEntry=115924.

  7. Totten, S. (2024, December 17). The bar exam: An ineffective measure of lawyer competency: Published in Cooley Law Review. Cooley Law Review. https://cooley-law-review.scholasticahq.com/article/127538-the-bar-exam-an-ineffective-measure-of-lawyer-competency.


 
 
 
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