Why some states are introducing pathway to bar that doesn’t include bar exam

Episode Notes

Transcript

Announcer:

Welcome to the ABA Journal Legal Rebels Podcast, where we talk to men and women who are remaking the legal profession, changing the way the law is practiced and setting standards that will guide us into the future.

Julianne Hill:

If you had the chance to rework how candidates were admitted to the bar, what would you do? That’s exactly the question that Deborah Jones Merit has spent decades considering. While much of the legal education world is focused on the uniform bar exam sunsetting in two years and the next Gen UBE being administered for the first time this month, merit’s focused on how can we make sure law grads are practice ready from the get go. I’m Julianne Hill and I’m a legal affairs writer at the ABA Journal. I’m filling in for Victor Li and this is Legal Rebels. I cover the world of legal education, so that means lately I’m closely watching the developments related to the alternatives to the bar exam that are cropping up all over the country. My guest today is indeed Deborah Jones Merritt. She’s Professor Emerita at Ohio State University Moritz College of Law and the co-principal investigator of the Landmark 2020 report, Building a Better Bar.

And in 2025, she was named an ABA journal Legal Rebel. Welcome to the show, Debbie. It’s always nice to talk to you.

Deborah Jones Merritt:

Thank you, Julianne. It’s always nice to talk with you.

Julianne Hill:

So most people, once they take the bar exam, never want to think about it again, but not you. You’ve made it your focus conducting research for more than 25 years. But before we talk about changing bar admissions, let’s talk about you and how reforming the bar exam became your calling.

Deborah Jones Merritt:

It is an unusual calling. I will concede that. I think it actually dates back to my very first years in teaching. And I enjoyed law school as a student. I also enjoyed law practice and I was delighted to become a professor, but I very quickly began to see that law school did not link properly, did not align with law practice. That in the law school curriculum, we were over-educating students on memorizing legal principles, some of which they might not even use once they got into practice. And we were greatly undereducating them on important skills that they need once they get into law practice. Skills that involve interacting with clients, counseling clients, advising them. There are so many difficult issues there. It’s not just a question of talking to somebody else. It’s a question of how you take on that counseling role. And then I began to realize that the bar exam suffered from the same defects, that really the bar exam mirrored what we were doing in law school more than it mirrored what was in practice.

And that’s the opposite of the way a licensing exam should be. Ideally, education, licensing and practice all flow together and align with one another. And that wasn’t true with the bar exam. The other thing I began to see at one point in my career, I made the unusual move from teaching what we call as a podium professor in the classroom to working in our legal clinics. And I there worked with students. I did both a prosecution clinic and a criminal defense clinic. Different semesters we didn’t fight against one another. I saw students who were superb in the clinic, got top grades, who really struggled to pass the bar exam. And that again to me was evidence of this great disconnect. So I then was lucky to find a few other people around the country who shared my rather unusual passion for figuring out licensing and legal education.

We formed a group that has been communicating with one another for many years. We Zoom every week or two to catch one another up on different updates, changes in what different states are doing and to brainstorm new approaches. And that’s really helped carry my interest along and helped a lot with the research that I did too.

Julianne Hill:

Seems to me that the pandemic cracked the tough shell of the bar exam rules and rules on social distancing forced jurisdictions to reconsider the bar exam and started using diploma privilege. And then the first administration of the next gen exam, which is this month and is skills based, helped make people rethink all the new possibilities and pathways seem to be having a moment because of that.

Deborah Jones Merritt:

I think what you say about the pandemic is absolutely right. Crack the shell of the bar exam. That’s a great way to put it. It is a rather peculiar practice we have of gathering all these people together in a huge convention hall. Medicine hasn’t done that for a very long time. I believe their exams are administered in testing centers and candidates can choose when they take the exam. But it also did crack open this question of why do we do it this way? The next gen exam is somewhat more skills based than the current uniform bar exam, but you can’t really test skills effectively on a paper and pencil exam, which is what we still call them, even though they’re on computers. So the pandemic did provide a shake in the system. And the group that I work with, we actually, we started thinking immediately.

Almost all of us were still professors then and we were facing these issues, what we would do with our final exams and so forth. And we wrote a white paper suggesting different things that states could do. A white paper that has been downloaded from SSRN more than any other thing I’ve ever published. So that was interesting. And a few states contacted us to talk over options. So that really was a breaking point. I think it also, the study that you mentioned, Building a Better Bar was one that concluded at the end of 2019, just before the pandemic. And so that was also available to states. It became part of this moment about how we license people and can we do better by following the recommendations of that report?

Julianne Hill:

The Building a Better Bar study, how did it come about and where did it take us?

Deborah Jones Merritt:

It came about through discussions with my colleagues who were interested in this issue. We realized we’ve been talking about evidence and we realized that we would need some evidence to help persuade state Supreme Courts and practitioners that the licensing system should change. And we know that there are surveys that some states and the National Conference of Bar Examiners have done about what it is that new lawyers need to know. Those surveys consistently and overwhelmingly show that skills are more important than doctrinal knowledge. So that evidence was already there. But we thoght, let’s try to flesh that out by holding focus groups. And because we wanted to persuade a profession that was probably resistant to this idea, we decided to hold 50 focus groups, which may be more focus groups than most empirical studies have done. But we were able to do it because of this network of scholars across the country.

And we held 50 focus groups with new lawyers and with supervisors of new lawyers in 12 different states across the country, some big cities, some rural areas, some in between. And then analyzed, Logan and I analyzed the transcripts from all of those focus groups and came up with what we call the 12 building blocks that provide the foundation for competent lawyering. We published that report just before the pandemic emerged. So I don’t think many people read it in the first six months that it was published. But over time, many of the states that we’re talking about, maybe even all of them have based their changes in part on that report. They’ve said, this is the kind of skills that people really need. We understand now because the report included anonymous of course, but stories from new lawyers about how they failed during their first year of law practice and what the particular pitfalls were.

So there’s quite a number of the new pathways that are structured explicitly around those 12 building blocks and others that are inspired by them. I’ve also started, we were hoping it would also affect legal education. And I’ve started to hear from professors at schools around the country that, oh gee, this is what we should structure our externships around showing that people can get these building blocks.

Julianne Hill:

So building a better bar kind of built the foundation of your legacy of these changes going forward. It changed not only your career, but all of these law students and candidates and the firms they work for going forward.

Deborah Jones Merritt:

I hope so. And the report by the way, I partnered with IELS, the organization I mentioned before. It’s on their website. It’s free to download available to anybody.

Julianne Hill:

What are the upsides of working through these pathways instead of taking the bar exam? For the students, for the candidates I mean they’re not students at that point mostly and for law firm and the public.

Deborah Jones Merritt:

Some of the candidates are still students. This whole project rests, by project I mean not my individual project, but project nationwide is inspired to some extent by what New Hampshire has been doing for more than 15 years. They have a program at, there’s just one law school in New Hampshire. And at that law school they have a program called the Daniel Webster Scholars Program. And those are students who take a required and structured curriculum for their last two years in law school that includes a lot of simulations and clinics and other experiential learning along with standard doctrinal courses that other students would take. They create a portfolio of work product which is reviewed by the bar examiners in New Hampshire. And if they successfully complete this program, including the bar examiner’s approval of the work product in their portfolios, they are licensed when they graduate.

So I’ll start with that background, which will inform what we’ll talk about with the more recent programs. One of the big advantages for students or candidates is that these pathways are much less expensive than the bar exam,

Traditional bar exam. Yeah. Obviously if you get licensed when you graduate, your license costs are basically rolled into your law school tuition costs and you can go to work. Many students, it’s not just the cost, it’s also wanting to get right to work, helping clients, earning money. That’s another part of the cost of the bar exam. People spend three months after they graduate studying intensively for the traditional bar exam. They don’t have time to work. They don’t have time to care for their family members. They’re paying thousands of dollars for a bar prep course. So for the candidates, I would say it’s a great savings of time and money. It’s also a chance to begin to work immediately in an area of law that we hope are passionate about. On the employer side, there’s also numerous advantages. They can get people to begin working in mid-May or early June rather than having to wait until September or even later when the person is licensed.

In New Hampshire, the program has had an extraordinary impact on employers. They are so eager to hire the graduates of this program, which is limited to just 25 students a year in that particular school that professors at New Hampshire tell me that they’re concerned that their other graduates are now having more trouble getting jobs. So lots of advantages on both sides. And I would also say great advantages for clients. If you have one of the things that the Building a Better Bar study showed is that there were lots of lawyers who had taken the bar exam who were making mistakes with clients during their first year. They didn’t know how to interview a client, but they were being thrown into the pit by their employers and they didn’t know a lot of other things. So I think we’ll have more evidence of this as time goes on because the other programs we’ll talk about are much more recent.

But I think that there’s strong benefits for the clients that these pathways really do produce more competent lawyers than the traditional bar exam.

Julianne Hill:

Some people will say there’s downsides too, one being that they’re not as easily portable and just there’s a certain stigma attached to them that people kind of like to know others are participating in the bar exam ritual.

Deborah Jones Merritt:

I think that’s right. Lawyers seem to be very stuck in the past. We teach precedent. We like to continue doing things the way we’ve been doing them. Nobody has ever studied the traditional bar exam to determine how effective it is at measuring minimum competence. We simply have done it for a long time. And so we assume that if it’s not broke, don’t fix it. And we don’t think it’s broke because it hasn’t had dramatically bad outcomes. So portability is a big downside. A lot of people really want to have the ability to move to other states. We know that young adults are very mobile and that’s something that the states that have adopted these innovative pathways are working on. And something that also is of great importance to the chief justices around the country. It used to be that the state Supreme Courts were totally on board with restricting portability.

They were resistant to it. And frankly, there’s a lot of protectionism in that, especially inspired by the lawyers. If you’re in Ohio like I am, you don’t necessarily want a bunch of Indiana lawyers getting their licenses and helping people just across the border. But the access to justice problems really weighing upon state Supreme Courts now. So the CLEAR committee, which we might talk about later in this podcast, was a committee from the Conference of Chief Justice from all the jurisdictions in the United States.

Julianne Hill:

That’s the Committee on Legal Education and Admissions Reform for those who don’t know. And they are really focused on legal education and licensing and what needs to be done to get people practice ready as well as rural and other legal deserts. That the group you’re working closely with as a consultant, I believe, and some of your other contributors or colleagues. How do those goals dovetail? Can we solve two issues at once?

Deborah Jones Merritt:

That’s always been my back of the mind motivation that law schools respond to what’s on the bar exam and the bar exam should reflect both legal education and law practice. It’s all about aligning those three parts of the process. And so you can try to intervene at any part in the process. You could try to intervene, for example, by in some way forcing practicing lawyers to spend more time educating their new lawyers. That’s a difficult task to achieve with so many practicing lawyers. You can intervene by trying to persuade law schools that they need to change their curriculum. That’s difficult to do. The ABA council has tried that. It’s actually the point of intervention is probably the bar exam because those are the people, the Supreme Court justices who control it and the practitioners who contribute to those decisions. Those are the people who know both sides and who also most important know what their clients need.

So I think that the licensing process has become an important way to think about affecting this whole flow. It’s not just all about licensing. It’s about also what a new system would do to legal education and then how that dovetails with practitioners.

Julianne Hill:

Let’s take a break and hear from our sponsor. When we come back, we’ll talk about which states are finding new pathways and why each has its own version. And we’re back with Deborah Jones Merritt, who’s advised many states on how to create a new pathway to the bar. In just the past few years, several jurisdictions have adopted and even more are considering skills-based pathways. That includes New Mexico where two state Supreme Court justices presented a plan to the state legislator just last month. But alternative pathways aren’t new. I’m thinking about Wisconsin and you already mentioned University of New Hampshire. So those two, I mean, Wisconsin has its own diploma privilege and that’s unique to them. And those two that are more historic just show this wide variety of styles of plans. Why do we have such disparity, such a spectrum of ways of admitting people to the bar other than the bar exam?

Deborah Jones Merritt:

It’s great, first of all, that we have that spectrum because this is one of the areas in which letting the hundred flowers bloom is going to help everybody because I’m already seeing in Oregon, which is one of the states I’ve worked with, and I know we’ll talk more about Oregon in a few minutes, that Oregon is still looking. They were one of the leaders, but they’re looking at what other states are doing. And they may make some modifications in their plan to use some of those in other innovative ideas. I think the reason there are so many routes is because the conditions in each state are different. And by conditions, I mean there are different numbers of law schools. There’s different types of practice areas. There’s different needs for access to justice. Most states have some rural desert, legal desert somewhere in the state and they’re rural areas.

And we certainly don’t have enough legal assistance in big cities either. But there’s also some of this very individualistic and personality driven that if there’s a justice or a state bar president in a state who becomes particularly interested in an innovative pathway, they may have their own ideas about what would be the best course to pursue.

Julianne Hill:

You mentioned Oregon and they started admitting applicants in 24. You were involved in that briefly. How does Oregon’s supervised practice portfolio examination, how does that work?

Deborah Jones Merritt:

First of all, you mentioned these being skills-based pathways and they certainly do include more skills than the traditional bar exam. That’s a motivation for them. But they’re also very doctrinal pathways. I believe all of them require not just graduation from an ABA accredited law school, but that ones take specific courses and pass specific courses in law school. In Oregon, those are the subjects that are currently tested or will be tested on the next gen exam on the eight or nine basic subjects. Then what happens in Oregon is that applicants have to be aproved as they go through the character and fitness review that often happens after one passes the bar exam. If they pass that, they’re issued a provisional license, which is the same kind of conditions as student licenses in most states. You could do most practice tasks including interacting on your own with clients as long as you’re under the supervision of a licensed Oregon attorney.

The Oregon candidates have to complete 675 hours of supervised practice and they have to compile a portfolio of 12 different work products, eight of which are writings and then two are negotiation assessments and two are client counseling assessments. The 675 hours is what people focus on first, but it takes most of the candidates many more hours than that to complete the portfolio requirement.

Julianne Hill:

Why is that?

Deborah Jones Merritt:

Well, it’s a difficult pathway. These are people who just graduated from law school and are taking their first job. And think back to the first year of law practice, you’re drinking from a fire hose. You’re trying to please your employer, you’re scared that you don’t know what you’re doing. And then on top of that, you’re trying to identify these work products and get them ready for portfolio submission. So I think the average time to licensing in Oregon now through this pathway is about 11 months, which seems reasonable to me. It’s a good, some people call it an apprenticeship period. It’s sort of like that, although it’s with a very broad license. And these apprentices or participants in the pathway have to be paid by their employers, at least what the employers pay other law school graduates. And that’s an important feature of the program. There’s a couple of other requirements as well.

They have to take the MPRE, the professional responsibility exam, or do something, do a journaling requirement that’s actually turned out to be more difficult I think than taking the exam. But that’s the basic structure. It’s what we call a portfolio system because that’s the major work of it. It’s submitting the work to the bar examiners. And the bar examiners grade those portfolios.

Julianne Hill:

And you’re one, you’re one of the people that do the grading, right?

Deborah Jones Merritt:

No, I’m a facilitator. I don’t even have an Oregon license. I’m here in Ohio, but I help them set up the system, which is that every writing is graded by two different graders. They’re graded anonymously. There’s all kinds of protections that we take about that. And then if the two graders disagree, we have a conciliation session where they talk to one another and come to a resolution. What I do now for them is these are grading weekends. And on the Friday afternoon before the grading begins, I take them through what we call a calibration session where they all grade all… We have anywhere between nine and 15 graders depending on the amount of work product. I take them through some samples from previous grading sessions that have generated doubts that have needed conciliation. And that helps them think through. I also write a handbook for them that explains how they should do their grading and do some other facilitation like that.

So I’ve had a bird’s eye view really of how the grading process goes because I lead those calibration sessions. And I also am one of the kind of staff members who facilitates the conciliation. So I hear why the two graders disagreed and how they work it out. And although I’m obviously part of the program and would be biased in that sense, I think it’s working remarkably well. I think we’ve gotten to a very high degree of consistency with the calibration, the handbook, the samples we give them and having the two graders, if they disagree, conciliate.

Julianne Hill:

Is this rigorous? I mean, there are people who are concerned that these pathways are the easy way out. Is this easy?

Deborah Jones Merritt:

Just ask some of the people who are still trying to complete the pathway. It’s actually turned out I think to be… Well, I knew from the beginning that it would be rigorous. For one thing, each of these 12 pieces has to pass. You can’t compensate for a bad writing with an extra good writing. So each piece has to pass. If it doesn’t, you are allowed to submit a replacement. And so most people, we have quite a number of people who get through the program without needing any replacement pieces. All 12 of their pieces pass in the first instance. Although it does still take them this average of 11 months while they find pieces that are appropriate for submission. We also, in grading the pieces, we have rubrics that I help design for that. And on the rubric, again, you have to pass every single element of the rubric.

So if you have a document that’s disorganized to the degree that we would say it’s not minimally competent, it doesn’t matter how brilliant your analysis was or how well you did on the other criteria. You have to pass every single criteria. I think it’s not only a rigorous pathway. I’m hopeful, and we’ll find out soon when we do some more research on the program, that it’s actually leading to more mentoring and more learning during the process. The bar exam doesn’t do much for you in terms of ongoing learning or mentoring, whereas this program I think does.

Julianne Hill:

Okay. So that’s Oregon. And then there are friends in South Dakota that have a totally different plan where the candidates are actually still students and they have to come back to school. That I find really a really interesting twist.

Deborah Jones Merritt:

South Dakota is interesting. In some ways it’s a little bit more like New Hampshire than Oregon because the pathway starts in law school. And if they’re accepted into the pathway, they spend their fall semester of their third year almost full time working for a public interest organization. This pathway represents a new trend that I see emerging in these innovative pathways that it’s exclusively focused on public interest. You can’t enter this pathway and go work for a corporate law firm. And it’s focused on public interest because South Dakota’s impetus for creating this new pathway was rural deserts and access to justice. So you work for one of those organizations. Then it’s like New Hampshire and Oregon that you compile a portfolio. The bar examiners review the portfolio so it’s not just doing your time, you have to produce quality work product. They do come back for the spring semester of their third year.

And then if they’ve completed, there’s a number of other requirements, curricular requirements. I believe, for example, in South Dakota there’s, I don’t know if this applies to everybody, but in this pathway, you have to pass a course on Native American law among the other courses that are included. And then here’s another feature of this pathway that differs from what we’ve talked about with the others. Y get your license then when you graduate, but you have to work for two years for a public interest organization, which is defined to include various types of rural practice and also some in the cities. So there’s that commitment and if you don’t fulfill that commitment, your license can be revoked. So some overlap, but very different in some ways.

Julianne Hill:

And briefly, Arizona has a plan that’s completely different. It’s a second chance program because their pass score is so much higher than their neighbors and they noticed that people were fleeing the state and crossing the borders. So they give people a second chance. Tell me a little bit more about that.

Deborah Jones Merritt:

Sure. It’s very different, but it has some resemblance actually to South Dakota because it was motivated again by access to justice issues, particularly in the rural areas of Arizona. And they do have this difference in their pass score. That’s true in other places in the country, but their pass score is 10 points lower than the pass score in some neighboring states that use the same uniform bar exam. So they say if you fall within those 10 points, so you didn’t pass, but you’re not more than 10 points below, you can have a provisional license and work for a licensed attorney as your supervisor in a public service type of placement. And I believe that’s for two years as well as what South Dakota is doing after graduation.

Julianne Hill:

Right.

Deborah Jones Merritt:

There’s no portfolio requirement in Arizona. I think probably the theory is they’ve come close to passing the bar exam and they would have passed it in a different state. So we won’t require you to submit work product to the bar examiners, but instead your supervisor will be mentoring you and keeping you on track.

Julianne Hill:

Right. And then there’s Nevada, which is completely different. It seems more like what medical doctors go through. There’s three prongs.

Deborah Jones Merritt:

Right. It is inspired by medicine in part. The first thing that’s distinctive about Nevada is that this new system applies to everybody. It’s not an option. Nevada will administer their final legacy bar exam, which is it’s not a uniform bar exam. It uses some NCBE products and some Nevada ones at the end of this month. But people have already started on this new pathway because this new pathway can start in law school. As you said, it has three components. One is what Nevada calls the foundational law exam. It is a multiple choice exam that is similar in many ways to the multi-state bar exam that’s currently taken by most applicants across the country. It differs from the multi-state bar exam though in key ways. It covers the same subjects, but it does not test as much depth or as much… It’s not really depth. I guess I’d call it weediness, exceptions to exceptions that people are forced to memorize through these bar review courses.

So it has a narrower, a kind of more realistic scope and Nevada has published an outline exactly the concepts and rules that people need to know. It’s about 85 single space pages. So it’s not an easy exam. There’s plenty that people are tested on, but NCBE is only starting to do something a bit like that and they charge you to get their, what they call their source books. Nevada, it’s up on the website. Anybody could look at it. You can use it to review for other things. And this exam is offered four times a year at test centers. You can take it anywhere in the country. So students in Ohio who plan to practice in Nevada I can take it here. And maybe most important, you can take it starting halfway through law school. So you don’t have to take it then, you can wait until after you graduate.

But anytime, four times a year, you can go to a test center and take this exam. So that’s actually testing people at a time that’s closer to when they’ve taken these courses. Most of the subjects of the bar exam are taught in the first year of law school and then the first semester of the second year. So Nevada offered its first foundational law exam at the end of May and the court will be releasing results sometimes fairly soon, I think. And we’re already preparing for the next one, which will be in October. The second part of this pathway is you take what’s called a lawyering performance exam after you graduate. And that one consists of three performance tests. Many people I think are familiar with the idea of performance tests, which are currently on the bar exam. You’re given the facts of a client problem and you’re given a small library of resources and you use those resources to address the client’s problem in a practice-like document.

It could be a letter to the client. It could be a memo to a supervisor. What’s different about Nevada’s approach here is that the performance tests on the uniform bar exam are 90 minutes, which almost everybody I’ve talked to agrees is too short of time. It’s unrealistic. For some reason with the next gen, they’re shortening it to just an hour, which is even more unrealistic. Nevada gives people two hours for each of these three performance tests, which I think is much better. The final component is where we actually now get some overlap with the other pathways we’ve talked about. Everybody in Nevada, in order to get their license, will need to complete a relatively modest number of hours of supervised practice. It’s about 50 hours. But during that time, they have to interact with a client and they have to complete several other… There’s a menu of different practice tasks.

So Nevada will be the only state that can say to clients, every lawyer we’ve licensed has had some experience working with clients before they were licensed. And there’s lots of ways to get that experience. You can do it in clinics and externships while you’re in law school. People have already started completing that part of the pathway. Or you could do it with your employer. Nevada Legal Aid providing opportunities for anybody who needs one. It’s a really special approach. And although people talk about the portfolio alternatives, I’ve had as much interest from other states who are thinking about following Nevada’s lead. So we’ll se what happens with that.

Julianne Hill:

Really interesting. This is a good time for a break. When we return, I’ll ask Debbie Merritt to look into her crystal ball and share a peak of the future of these pathways. Welcome back to Legal Rebels. We’re here with Debbie Merritt and we’re talking about all the movement and the alternative pathways to the bar. So Debbie, how do we know that we’re going to get qualified and practice ready lawyers with these things? There’s people who say they’re not so sure and are, as we talked about before, are just kind of wanting to keep things the way they are and they should do it because I did it regarding the bar exam. How do we know that these are going to be solid, ethical, good lawyers that can help clients and behave in a way that’s best for the public?

Deborah Jones Merritt:

We already have one very strong piece of evidence and that relates to the New Hampshire program that we talked about, which not only has been in practice for more than 15 years, but has been studied by independent researchers. They were studied by ILS, the Institute for Advancement of the American Legal System, which also partnered with me on the Building a Better Bar study. They were Logan Cornett, who is their head of research and I were the co-principal investigators. So may years ago, probably about 10 years ago, the New Hampshire program had been in operation for a while. ILS went in and did a study. They had focus groups with employers and with people who had used the program. They also did a test, a simulation. They had a simulated client interview, which they had students who had taken this program or were still taking it actually in New Hampshire, do interviews of this client.

And they had lawyers who had been recently licensed through the traditional bar exam interview the client. And it was scored by people who observed the interviews. The students significantly outperformed the licensed lawyers who had taken the traditional bar exam. The licensed lawyers just didn’t ask several questions that were essential to solve this client’s problem. It was really a dramatic illustration that you can know as much doctrine as AI thinks it knows, but if you can’t ask the right questions to the client, you’re not going to get the right answer. And then in New Hampshire also, we see the fact, I think I mentioned earlier that employers are, these are the most popular graduates from New Hampshire. Employers are anxious to hire them. And I’m fairly confident because I’ve talked to the people in New Hampshire that no graduate of this program has ever been disciplined.

So there’s lots of good evidence from New Hampshire. Of the more recent programs, I believe that Oregon is the longest standing. It started a little over two years ago after quite a number of years of planning and design in a pilot project. Oregon has started doing some internal studies, although those don’t yet address what the impact is after somebody’s been licensed for a few years. And I believe that Oregon may soon partner with a outside independent research group to do some studies. We may also have professors around the country who will develop this interest and will decide they want to study Oregon or some of the other states. But it’s hard to study whether or not people in two different pathways are effective lawyers. As I think I mentioned earlier, there’s no study that proves that the bar exam does a good job. It’s simply, it’s always been there and so we’re used to it.

We assume that it has certain attributes, but it’s hard to get a real measure of somebody’s competence. Any type of studies of people. Social science is always more difficult than putting things in a test tube.

Julianne Hill:

Is there any merit to the bar exam itself? I mean, some people have called it a hazing ritual and then it should be abolished. Is it important to have one at all?

Deborah Jones Merritt:

Well, you could argue for diploma privilege like Wisconsin has. And so if you complete a certain list of courses, which is a pretty easy list to complete, you would be licensed at graduation. I have some sympathy for that, but I think it’s very unrealistic. I think every state that I’ve talked to wants some sort of assessment that the lawyers are competent beyond what professors say in law school. That’s frankly based on a lot of distrust of law school and some perception that law school is not really producing practice ready lawyers. People argue that the bar exam requires a degree of commitment and maybe learning to work under pressure that is valuable for lawyers to have. Those arguments I don’t see because the type of pressure that people feel when they’re studying for the bar exam, it really exceeds pressures that they feel later in law practice.

That’s what almost every lawyer tells me. They remember those two months with distinct par. And I don’t think we really should be training lawyers to shoot from the hip, which is what the bar exam really does. You have to answer this multiple choice question in less than two minutes, move on to the next one. We don’t want lawyers who… That’s like an online legal talk board, right? Answer a question, here’s the person’s situation, answer it. Move on to the next person. Move on to the next person. I think we’re actually cultivating bad skills in terms of time management and stress coping and so forth. That’s the other advantage I se with these pathways. They’re actually cultivating good skills of taking time to work with clients and to research the law and so forth.

Julianne Hill:

From what you’ve seen of the next gen UBE, is it any closer to making sure people are practice ready?

Deborah Jones Merritt:

I would say it’s a tiny bit closer. I actually worked with NCBE. I was on their content scope committee and helped design some of the new question types, although I wasn’t a long-term member of that team. I just did some work at the beginning. It’s closer in that it does have questions that require you to know something about client counseling and negotiation, but it’s pretty limited. I think it goes as far as you can on a written closed book exam to try to test some of those things. I think they made a huge mistake in cutting the performance test back to just an hour a piece. That was the most realistic part of the uniform bar exam. And I think they made it worse by giving people such a limited amount of time. You would never walk into your office in the morning and be handed a file that’s a brand new file.

You know nothing about this client or their issues and a couple of cases and statutes that you’ve never seen before and have your supervisor say, “I need a client letter from you in an hour, no more than an hour.” That’s teaching bad habits for practitioners. We want people who are thorough and thoughtful, maybe especially now. I mean, AI could do that, could analyze that in an hour, probably in a minute, but is that really the kind of law practice we want?

Julianne Hill:

What has to be done to legitimize these programs? The ABA is talking about changing some of their standards to make it easier to have the people who pass the bar through these alternative pathways have a count toward the school’s pass rate. Are there other things or how important are the ABA standards to this and what else has to be done to get more people to be supportive, I guess?

Deborah Jones Merritt:

I don’t think the ABA standards matter much now that they’ve already made two changes. For a long time, the ABA had a resolution, I don’t know the exact legal status of it, but that you had to have a written bar exam. But they disregarded the fact that Wisconsin did not, that there were people being licensed through diploma privilege. So that standard, I’m not sure was ever enforced. They also disregarded the New Hampshire program, but maybe a year or two ago they finally realized that there was an inconsistency and so they modified that standard. And then as you said, they now count these innovative pathways and pass rates. Again, they were always doing that for Wisconsin and New Hampshire, but they have broadened that. So I’m not sure there are any other standards from the ABA. I think a big thing would be portability from the states.

If the states would say people have different ways of measuring competence and all of these different ways seem to be very solid. So if somebody has shown themselves to be competent in Ohio where we’re going to use next gen, then we will accept that in other states. Even in Nevada, hopefully even though they’re not doing next gen, and I think they have a better system, they should be willing to reciprocate. And by the same token, if states have found that the graduates of New Hampshire’s program or the candidates who complete the Oregon program are confident, why wouldn’t I respect that?

Julianne Hill:

What’s next for these pathways? What are we going to see next year, two years, five years?

Deborah Jones Merritt:

I think we’ll consider to see new pathways adopted. Minnesota is pretty far along the road towards a final approval of a very well thought out pathway. Washington State is probably next. They have presented a detailed plan. And New Mexico, although it was presented just recently, I know they’ve been working on it for quite a while. And as you said, there are two justices, the current chief justice and the former chief justice who are behind that plan. And I know of, I would say at least half a dozen other states who are somewhere along the consideration path. I think these pathways will continue to hold attraction to states for a few reasons. One is the access to justice question. That’s the motivating factor in most of the states that I’m familiar with right now. The second is that as we’ve talked about, more evidence will come to light about how these programs work and that they’re effective.

Some of it will be research type evidence if people do the kind of studies that were done of New Hampshire years ago. Some of it will simply be knowing other lawyers who were admitted this way and seeing how effective they are. And the third big factor, which is still a little bit of a wild card, but I think will play a big role, is artificial intelligence, AI, because law practice is already changing and will change more. And so how do you assess somebody appropriately for a law practice that includes AI? The current closed book bar exam already does a bad job of assessing your ability to research. And it’s going to be impossible, I think, through that type of exam to examine, is this person competent in an AI infused profession? And I think the portfolio exams and some of the other innovations will be much more effective at…

We’ll have to figure out how to do it. I’m not heavy saying that I could present a plan by the end of this week, but I think they will be more effective at assessing competence in this new environment.

Julianne Hill:

When you step back and think about where we are now compared to when you started looking into this, is this what you imagined was going to happen?

Deborah Jones Merritt:

I did not imagine this would ever be, that this idea would catch on as much as it has. I’m very gratified that it has because I think it shows that state Supreme Courts and bar members care about the profession and care about a good licensing aproach, but lawyers are so enraptured with what they’ve done before. There is that whole precedent mindset that I though it would be much more difficult to persuade people to change.

Julianne Hill:

Well, thank you so much for joining us, Debbie. It’s always a pleasure to talk to you. I’m Julianne Hill for the ABA Journal, and I’m filling in for Victor Lee. And thank you for listening to today’s show. If you enjoyed it, please rate us on your favorite podcasting app and check out some other titles from Legal Talk Network. Thanks for listening and we’ll talk to you next time.

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