Shaping the Bar
The Future of Attorney Licensing
Joan W. Howarth


Contents and Abstracts
1 The Crisis in Attorney Licensing
chapter abstract

Chapter 1 describes the current crisis in attorney licensing, starting with the core problem that current licensing practices have an unequitable impact on candidates, while also not adequately protecting the public from incompetent attorneys. Graduation from an accredited law school and passing a bar exam fail to protect the public because neither law schools nor bar exams are closely connected to legal practice. Law graduates fail obsolete bar exams after amassing six-figure debt, with the high costs of law school and low bar exam pass rates disproportionately burdening African American and Latinx law graduates. Low bar pass rates are pushing law schools to teach to very flawed bar exams, skewing the education taught at law schools even farther away from the lawyering competencies that the public should expect. Misguided attorney licensing not only diminishes diversity in the profession but also adds to the crisis in access to justice.

2 Becoming a Lawyer in the Young Nation
chapter abstract

Chapter 2 describes the roots of today's attorney licensing problems in the early history of the legal profession in the United States. After a shaky start, the legal profession established itself as prestigious and profitable by imposing ever-increasing barriers to entry. The pre–Civil War Jacksonian era when all voting citizens could practice law was short-lived, and women and African Americans were still excluded. Bar exams started as oral interviews based largely on the candidates' prior relationships. The model of legal education as an academic enterprise unsullied by practical concerns or lawyering expertise took root in the late 1800s. The formal licensing requirements of education and written bar exams that exist today had taken hold by the end of the nineteenth century, when lawyers were unabashedly focused on remaining a profession for white Protestant men of means and strong health.

3 Shaping the Bar in the Twentieth Century
chapter abstract

Chapter 3 describes the relentless twentieth-century project of using escalating educational requirements and more difficult bar exams to limit who could become a lawyer. Prestige goals and economic protectionism remained hidden behind claims of public protection. Demanding and expensive accreditation standards shut down night schools and law schools created for African Americans and the working class. Organized professional associations, from the ABA to local bar associations, worried about the entry into the profession of immigrants, Jews, people of color, and working people of all races. The mid-century introduction of the LSAT changed law school admissions, but the vast difference between a law school education and the profession in practice remained unchanged.

4 The 1970s Legacy of Activism, Psychometrics, and Good Faith
chapter abstract

Chapter 4 tells the story of a lively decade in the history of attorney licensing—the 1970s. The introduction of the Multistate Bar Exam (MBE) in 1972 ushered in the era of psychometrics in bar exams and transformed the National Conference of Bar Examiners (NCBE) into a national powerhouse supplier of bar exams. The 1970s were also an era of activism and lawsuits challenging the lack of job relatedness and the wide racial and ethnic disparities in bar pass rates. But courts sided with bar examiners, leaving bar exams immune from the Title VII requirements that employers stop using employment tests with discriminatory impact but unproven job relatedness. With increasing technical testing expertise, the NCBE improved the reliability of bar exams, but validity and fairness lagged far behind.

5 Pressure Points in Contemporary Licensing
chapter abstract

Chapter 5 describes the current era of disruption in licensing, following decades of stability and stagnation. The expense of law school became increasingly divided by race, with rankings-driven scholarship policies leaving many African American and Latinx students subsidizing white students, resulting in significant racial and ethnic disparities in debt. ABA accreditors reversed course, eliminating the longstanding prohibition on law school courses aimed at passing bar exams and adopting a new standard requiring successful bar pass rates. This shift invited the commercial bar prep industry into legal education, with bar prep companies now offering courses, teachers, and analytical support. The NCBE consolidated power with creation of the Uniform Bar Exam, now adopted by over forty jurisdictions. The staid world of bar examinations was shaken in 2020 by the pandemic, which prevented testing as usual. The profession's inability to cope led to increased activism and calls for reform.

6 Decades Lost Without Research
chapter abstract

Chapter 6 explains challenges in understanding minimum competence to practice law—what bar exams purport to assess. Attorney licensing is supposed to protect the public by ensuring that newly licensed lawyers are minimally competent to practice law without supervision. For decades critics have complained that bar exams have not been validated or shown to be related to the minimum competence that they purport to assess. Criticism has come from civil rights and other public interest groups concerned about the discriminatory impact of unvalidated tests and from testing experts, who decry the attempt to exclude candidates without an understanding of what is being assessed. This chapter describes some notable efforts and failed opportunities to understand minimum competence to practice law.

7 Doubling Down on the Errors of Legal Education
chapter abstract

Chapter 7 explains that licensers typically look to professional education to help understand minimum competence to practice, and it shows why this standard approach has not been successful in attorney licensing. Legal education's longstanding distance from law practice has made law schools weak sources for understanding minimum competence in practice. Few law professors know much about the practice of law, and the typical foundational courses in law school are chosen in part as vehicles for teaching legal analysis and reasoning, not because graduates are likely to practice in that subject area. This chapter explains how relying on legal education for bar exam content doubled down on the academic side of preparation but gave short shrift to most lawyering competencies. Law school graduation and passing a bar exam do not guarantee that a candidate has ever been in a law office or undertaken much lawyering work beyond legal reading and writing.

8 Finally, Research on Minimum Competence
chapter abstract

Chapter 8 analyzes the three landmark studies undertaken in 2020 to define minimum competence to practice law. After decades of neglect, this serious research enables the legal profession to move beyond the "I know it when I see it" approach to attorney licensing. The NCBE, the State Bar of California, and the Institute for the Advancement of the American Legal System (IAALS) released studies that attempt to describe minimum competence sufficiently for it to be meaningfully assessed. This chapter describes the insights from the NCBE's most recent job analysis, the similar but somewhat more ambitious study by the California bar, and an exceptional focus group study, Building a Better Bar from IAALS, that open the door to better public protection through well-designed licensing requirements.

9 Who Fits?
chapter abstract

Chapter 9 addresses the character and fitness inquiry that every jurisdiction undertakes. Character and fitness is potentially the most important aspect of attorney licensing for public protection, but current practices are largely ineffective. At its worst, the character and fitness inquiry deploys the prejudices of the day to foster an elite image of the profession by discriminating against outsiders. The more legitimate purpose is to attempt to predict future bad acts, but such prediction is difficult. This chapter describes historic and current problems with character and fitness, including inconsistent and inadequate procedural protections, inaccurate predictions of future wrongdoing, and misuse of character and fitness to punish dissent and exclude candidates considered undesirable—including sexual and gender identity minorities, immigrants, and people with a history of encounters with the criminal system or mental health issues.

10 Fixing Character and Fitness
chapter abstract

Chapter 10 argues that public protection requires two important conceptual shifts in character and fitness efforts. First, pre-licensure character and fitness efforts should focus on prevention, not prediction, by requiring much more of law schools. Jurisdictions should continue to test the rules of professional responsibility but understand that prevention of misconduct requires education beyond learning the rules. Jurisdictions should require 1L coursework in professional identity, supervised practice as a student attorney prior to full licensure, and coursework or a certificate in law office or project management. Second, state bars should transfer some of their character and fitness scrutiny and resources away from applicants to lawyers already in practice. The character and fitness application and entry-level scrutiny can be streamlined, with increased investment in monitoring and preventing attorney misconduct.

11 Twelve Guiding Principles
chapter abstract

Chapter 11 offers a framework of twelve foundational principles to improve public protection through better attorney licensing. (1) Base licensing requirements on evidence about understanding, ensuring, and assessing minimum competence to practice law, not just hunches, tradition, and good faith. (2) Address racial, ethnic, and gender disparities as if required by law. (3) License no one who has not successfully practiced law under supervision. (4) Align bar exams more closely with minimum competence to practice law. (5) Establish competence-based educational or training requirements. (6) Reduce the expense of becoming a lawyer. (7) Make licenses portable from state to state. (8) Use uniform cut scores to protect the public, not to keep out competition. (9) Provide multiple forms of law licenses. (10) Reassess competency following licensure. (11) Design licensing requirements to change with the changing profession. (12) Remember that responsibility for better attorney licensing rests with the states.

12 Clinical Residencies
chapter abstract

Chapter 12 argues that new lawyers should not be unleashed on the public unless they have successfully practiced law under the watchful eye—and license—of an experienced attorney. The chapter proposes a model of academic clinical residencies that jurisdictions should require. The chapter explains how structured residencies will expand the lawyering competencies and strengthen the professional identities that law graduates bring to their first work as lawyers. The residency should instill habits of professionalism and competence that transcend specialization. To instill those habits effectively, residencies should feature client representation; with supervision by an excellent attorney; in the context of an academic program that includes (a) key learning goals, (b) habits of reflective practice, and (c) assessment of the competencies expected to be learned. The chapter explains that such a residency is more than simply learning from experience; it is learning how best to learn from experience.

13 Asking More of Law Schools
chapter abstract

Chapter 13 argues that attorney licensing today asks too much of bar exams and too little of legal education. Most jurisdictions follow a simple approach to educational requirements: graduates of ABA-accredited law schools are eligible to sit for bar exams. The major deficit of this approach—ABA-accredited law school degree plus bar exam—is the lack of any supervised practice requirement. New educational requirements could improve public protection, with or without a post-graduation bar exam. The chapter shows how educational programs that teach and assess minimum competence to practice law could be the basis of diploma licensure that offers the public better protection than today's bar exams. The chapter describes several examples of competence-based programs, including New Hampshire's Daniel Webster Scholars program, Oregon's Experiential Pathway, and Canada's post-graduation Practice Readiness Education Program and recommends assessing applicants by evaluating their portfolios of work products.

14 Escaping the Conceptual Traps of Today's Bar Exams
chapter abstract

Chapter 14 analyzes the conceptual weaknesses of current bar exam design. Traditionally bar examiners have focused on the competencies of (1) applying facts to rules and (2) memorizing the legal rules that may be needed in practice. Legal analysis should be at the heart of any bar exam. The current emphasis on memorizing doctrine is obsolete, having derived from a time when lawyers did not specialize, less law existed, and law libraries were scarce. This chapter dissects the range of abilities required for minimum competence, asking what lawyers must know and what competent lawyers need to be able to do. This chapter sets out the capabilities that should be tested on bar exams and analyzes the appropriate level of cognitive demand. The emphasis should be on lawyering methods and internalized foundational knowledge, which should be tested in context.

15 Bar Exams: Better, Best, and Other Fixes
chapter abstract

Chapter 15 presents the future of bar exams, recognizing that most states will want to have a licensing test as at least one path toward licensure. The chapter explains how future bar exams can be much better than the exams familiar to generations of lawyers. The NCBE has recently announced its commitment to producing what could be a much better test, its NextGen Bar Exam. The NextGen Bar Exam is likely to incorporate some aspects of performance tests such as the Multistate Performance test (MPT). An alternative testing regime consisting entirely of performance tests could be even better than NextGen, offering more flexibility for design modification and permitting testing in stages, which the NextGen will not. The chapter also explains why better standard setting, less speededness, regular periodic review, and more transparency will be needed for whatever future tests are used to license attorneys.