Recent bar exam criticisms have left many in the legal sphere questioning whether the test really does what it claims. Is it still an essential step in legal licensure, or is it just a tired tradition? To help law students understand the many facets of this issue, Meg Steenburgh welcomes Josh Block and Adam Allington to discuss arguments for and against the bar exam that were recently aired in a three–part series from the UnCommon Law podcast.
Josh Block is the executive producer for video and audio at Bloomberg Industry Group.
Adam Allington is a senior audio producer for podcasts at Bloomberg Industry Group and host of the UnCommon Law podcast.
Thank you to our sponsor NBI.
Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.
Meghan Steenburgh: Hello and welcome to another edition of the ABA Law Student Podcast. I’m Meg Steenburgh, a 3L at Syracuse University College of Law, JDI program. Today, we are honored to have with us, Josh Block and Adam Allington. Adam Allington is the host of the UnCommon Law podcast, at Bloomberg Industry Group in Washington, D.C. Prior to coming to Bloomberg, he was a reporter for many years in the public radio system, primarily with Marketplace and St. Louis Public Radio.
Josh is the executive producer for video and audio at Bloomberg Industry Group, where he oversees production of videos and podcasts for Bloomberg Law, Bloomberg Tax, and Bloomberg Government. Josh began his career producing television interviews for Charlie Rose on PBS. After that, he joined the staff of Late Show with David Letterman, where he prepared Letterman for his interviews and guests. He has also contributed to numerous award-winning programs for HBO, PBS and ESPN. In 2005, he left production for law school, but joined Bloomberg after graduating from law school and held a variety of roles primarily creating podcasts and videos for Bloomberg Law. Presently, he oversees both videos and podcasts for Bloomberg Industry Groups news division. Josh earned his law degree cum laude from New York Law School. Hello to you both and a sincere thanks for joining us today.
Adam Allington: Hey, Meg, thanks for having us.
Josh Block: Yeah, thank you.
Meghan Steenburgh: Absolutely. Well, you both recently concluded a three-part podcast series about the bar exam for Bloomberg Law. And it’s a topic we covered recently, but just in one simple question and that was with some students in a recent graduate and their opinions mirrored a lot of the spectrum you presented, but of course you went into such great depth. I listened it’s fantastic three parts and we’re going to talk about what you learn in those parts and the three parts are is it time to kill the bar exam? Could a law school diploma stand in for a bar exam and why can’t we have one bar exam for all jurisdictions? So, first of all, why these particular questions, why now and whose idea was it to explore this? And Josh, I’ll start with you and Adam just jump in.
Josh Block: So, as a lawyer, I super interested in the bar exam. Just as a topic and we actually at Bloomberg Law, we made a video about it where — when I took the bar exam, I never turned off my TV and radio brain. And I thought, look at all these people standing here sitting ducks. We should do a video about this. And here we are years later. And when we expanded our podcasts into doing sort of long form podcasts and Adam was looking for a topic. We talked about the bar exam as a topic. And I think from there, we talked about was it one episode? Is it two episodes? And what are the different topics that we could do in that? And I think that as Adam, this is where Adam’s reporting came in and sort of we came up with this is how, this is going to break down.
Adam Allington: Yeah, I think it’s just one of those topics that for lawyers just keeps coming up, obviously, twice a year. And I think Josh had done a video seven years ago or something that is still quite popular on YouTube. So, that gave us the idea that we could do this for a podcast, and it would be something that would be kind of evergreen for listeners to come to. And also, the situation that we’re in now still in with COVID had a lot of people asking questions about the future of the bar exam. So, that was kind of the reason for doing it broadly. But then, as Josh said, it was a lot to cover, so we just decided to take it and what we felt were like three different stories that kind of fit together.
Meghan Steenburgh: So, for the first question, is it time to kill the bar exam on the no, bars good side? What are the arguments? What did you learn?
Adam Allington: Well, I think, as you said, it’s good to start with the people who say the bar is perfect, don’t touch it, because a lot of lawyers have — I guess, a kind of negative memory of the bar exam, and no one recalls it really fondly yet there are still quite a few people who say the bar don’t touch a hair on the bar’s head. So, when I call people up and ask them that question, the answer that I primarily got back was that for all its faults and there are things about the bar exam that could maybe be improved and fixed. It’s still the best tool we have for weeding out incompetent practitioners, people who shouldn’t be out there taking client’s money and giving them bad legal advice.
Another common defense is that even if you subscribe to the idea that a lot of what one studies for the bar exam isn’t stuff that you will use in your particular specialty as a lawyer, it still does test on a lot of substantive knowledge that every lawyer should know. So, it is a kind of way for attorneys to get a grounding across the board in a lot of different substantive legal areas that they should be aware of, just kind of an extra layer of protection there.
Josh Block: And this idea of minimum competency that keeps coming up. We have to have this minimum competency. But the truth is, I think we found overall, if you look at this thing, even the bar examiners, they’re changing the bars. There isn’t a lot of actual real don’t change. Even the bar examiners are changing their exam. So, most places are changed. The question is how much are they going to change? I think.
Meghan Steenburgh: So, holding students accountable, no one skates by. I get that one comment that threw me off a little bit was to keep law schools on task. And I thought that was an interesting I never really thought of it that way, but it punished the students for the school not staying on task in that sense. It just seemed a little much for me because I think that the law school should be constantly thinking about how do we — I mean, I remember one of the first comments when I got to law school was it would be malpractice for us to keep you here if you can’t even pass one out like we have a curve because you’ve got to have this minimum competency. I think that there should be some self-policing, not necessarily through the bar in that sense. Did that comment throw either of you off?
Adam Allington: I think Josh had some specific thoughts on that. As someone who went through law school. When I first heard it, it didn’t register for me as a non-lawyer. I was kind of thinking with my kind of business reporter brain that without the bar exam, law schools would have this incentive to just admit as many students as they could to make more money in tuition and that the bar exam was a check on the back end to keep them from pursuing their financial best interest. But Josh, I think we had a discussion about this where he pointed out that that’s not really what’s going on at most law schools, especially at your higher echelon schools. That’s not what their calculus would be in admitting law students anyway. So it is, I guess, for maybe not a check on their worst intentions in terms of trying to just take people’s money, but maybe a check on them. And just in the fact of are they teaching what individual states want them to be teaching in order to allow students into the state so they can hit the ground running.
Josh Block: Yeah. And there’s an accreditation piece for law schools. They have to have so many students, and this is something that you’re not going to pay attention to, probably as a student. But so many students have to pass each year for you to keep your accreditation. If you don’t over a number of years, you could lose it. If you’re admitting students that can’t pass. We know there are schools that have programs that if you are in the bottom third, bottom quarter, you’re directed towards, you take these courses and you take these courses because these courses will get you to pass the bar. So, legal education and bar prep, like they’re distant cousins, they’re not quite the same.
Meghan Steenburgh: How does that work with — it’s Wisconsin, correct? That does not have this bar mandate if you’re going to stay and work in Wisconsin?
Josh Block: Yeah. I thought this was really a fascinating piece because we hear about this diploma privilege. But what’s that? Does that mean that I go to law school and I get to practice? There’s more to it, which is why we did spend a whole episode on this and Adam you can –
Adam Allington: Wisconsin is an interesting case. As you point out, they’re the only state that still offers diploma privilege. Back in the day, a lot of states had a similar system. So, Wisconsin has two law schools, Marquette and University of Wisconsin. And so, if you graduate from those schools in good standing, you’re okay to practice law in Wisconsin. And in terms of the normal regulatory gatekeeper approach that either state supreme courts or state bar associations would have, they still have a relationship with those schools in terms of determining the curricula that in state graduates would need to go through in order for them to feel comfortable admitting them to the bar in that state. So, there is still a gatekeeper function that states play here. They just are instead of handing the testing and the training up for that to be admitted over to the National Conference of Bar Examiners and Barbary, they’re giving that responsibility to the law schools themselves.
Josh Block: And both the curriculum piece and the fact that there are just two law schools in Wisconsin actually play a role here. I can’t imagine New York doing this. We have so many law schools in New York. But when we talk to a law firm partner who hires from these — he talked about we’re really comfortable with Marquette and Wisconsin because we know what they do. We know the deans; we know the professors. And that was actually a point that when we to talked Iowa, who was considering this and rejected it, they were like, well, that’s not our job. We don’t want to do that. We don’t want to have to talk to law schools or the deans. Like, we don’t want to be the ones. We don’t want to even be involved in this process. But what we learned is you go to Wisconsin; you are on a path to take certain courses. If you don’t want to take the bar, you won’t have in your third year the opportunity to take, I don’t know what clinic or the elective that the third year –
Meghan Steenburgh: Trademarks.
Josh Block: Yeah. Trademark. Sure.
Meghan Steenburgh: So, heading back to the first question about killing the bar, what about for those who say, kill it, the bar does need to go away. What do you hear on that side?
Adam Allington: Yeah, that’s a very loud minority. But the main arguments that I heard were the people who say, and again, COVID really brought these people out, galvanized the kind of criticisms of the bar in ways that we haven’t seen in years past. But they say that the bar exam is kind of an acronysm, that it was designed at a time when the practice of law was a generalist profession, and that these days, lawyers specialize and so, a marathon exam designed to test on this wide range of substantive knowledge just isn’t the way people practice law anymore. I think it was Joe Patrice from Above the Law, who I interviewed for that first episode, who said the practice of law is an open book field, and the bar exam is a closed book test.
So, that’s the main criticism, that the bar just doesn’t accurately test for legal competency as it’s practiced today. Other criticisms are that the bar prep materials and the time and access that people need to prepare aren’t doled out equally, and so that students without the same financial means underperform on tests because of that. And so, those were two of the primary criticisms, that it doesn’t test legal competency the way people would have you believe and that it’s unfairly administered.
Meghan Steenburgh: I think the other point, too, that also resonated that you spoke a lot about was the impact on minorities and the fact that it holds those in the minority population back for all the reasons you just stated, as well as the fact that it’s just one more bar that has been proven correct to hold back.
Adam Allington: Right. At a time when the industry is really trying to do everything it can to become more diverse, to hire attorneys from different backgrounds. People were just asking, is the bar exam really necessary in the ways that we think it is in light of what we say, our true aims in the profession are.
Meghan Steenburgh: I think, some of the compelling moments, the series, they were all the personal moments, especially when you spoke to recent law school graduates. They’re waiting to get the results of their bar exam. You have the recording and the moment when they open up the letters and either have a yes, you’ve passed, and no, you haven’t.
Meghan Steenburgh: How did those moments impact you? And maybe Josh, from your perspective, having sat in that and then heard the anguish and heard the joy, how did that resonate with you?
Josh Block: It’s so visceral. When you’re waiting for that result and you get it, I feel sorry for you, Meg, because you’re a 2L and this is coming down the pipe. But there’s this moment when you leave the bar exam and you’re waiting for this result to come. And the first interview we do with Alexa Salcito, I think, really brings us home. Just like here’s the student who did so well at Emory, and she was so confident as a graduate, and now she feels like lost in Barbary, and she’s waiting for the result and doesn’t know. And there are a lot of people — there are plenty of people who come out and they’re confident. Oh, I’m sure I passed and your numbers say you passed but what we find out even in this series there are people who will find out that despite their pedigree, it’s common. It happens. It happens a lot.
Adam Allington: Alex Su from the episode three who a lot of people may know from Tik Tok and Twitter I think Josh is a good example of that. Someone who went to Northwestern law school, got really good grades, had a job lined up at Sullivan & Cromwell in New York and then he failed the bar the first time around. It really made him question a lot of things about himself, his career. I think those stories kind of illuminate what’s really going through people’s minds and all the steps they take to try to make sure they pass. I’m so glad I didn’t have to do it.
Meghan Steenburgh: The anxiety in the preparation of it where I’m going through, I’m studying, I’m studying, I’m coming out either about the same or below what I got when I first started studying in terms of practice tests. I’m going to start yet another program and then go over here. I mean, it just sounds like something I do in classes.
Adam Allington: I believe — this is my opinion but I believe that Barbary’s practice exams are way harder and I’m sure this is actually not that uncommon or way harder than what you’re going to get on that test and I think that there is a degree of scare you into making sure you pass.
Meghan Steenburgh: We are speaking with Adam Allington and Josh Block with Bloomberg Industry Group. We’ll be right back.
And we are back now with Josh Block and Adam Allington exploring a three-part series on the bar exam recently produced for Bloomberg Law on the uncommon law podcast. So, this three-part series again part one is a time to kill the bar exam, two, could a law school diploma stand in for a bar exam, and three, why can’t we have one bar exam for all jurisdictions? Before the break, we spoke about the first episode and some of the second as well. But let’s focus on the second episode at this point. Could a law school diploma stand in for a bar exam? So, I know in speaking about it briefly, it works in terms of a diploma privilege. What kind of changes would we need to see to consider it? Josh?
Josh Block: So, one of the things that I think has to happen for a diploma privilege in most places is really for the gatekeepers, the judicial system to sort of be more involved in the curriculum and figuring out what people need to know to be admitted. And that’s the thing. That’s what Wisconsin does. And that’s what we found that Iowa didn’t want to do when they considered it. And there was a recommendation. And we have in the piece audio of this lawyer saying this is the way to go. And then afterwards, Adam spoke to the retired justice of the Iowa Supreme Court, David Wiggins. And David is like, I don’t want to be in that business. I don’t want to tell states what they need to do.
So, the piece is really making sure and frankly, it would mean limiting the choice, particularly for 3L’s. You’re going to have to take this coursework to pass. Now, there are other systems that are actually being considered. Oregon just — I think they passed yesterday or a couple of days ago, a couple of different alternative models. And I think that’s the thing, Adam, that you found is there are a bunch of models for diploma privilege.
Adam Allington: Correct. Famously, I guess, or most interestingly, California has their own blue-ribbon panel that’s looking at alternatives to the bar exam right now. And that is a state, obviously, with lots of law schools. When I was reporting this out, it seemed to me that states similar to Wisconsin could easily adopt a system like this in the same way that Wisconsin did.
States with a few one or two or three law schools that were all on relatively equal ground could do this if they wanted. But in a state like New York, Florida, California, where you have lots of schools at different levels, trying to sort out differences between those different schools would be a bit more tricky. But it’s something that I think a lot of states are considering for sure now at least five states at the time we were reporting this, California, Louisiana, Utah, Washington State, Oregon. It’s something that could be — we could see some different models that we could compare instead of just looking at Wisconsin.
Josh Block: So, it’s worth saying what we saw with the pandemic was emergency diploma privilege, which is not quite what we would be looking at long term. These were states that were like, how are we going to do this? How are we going to have a bar exam? Okay. We’re not going to have a bar exam. We’re going to say this class of students is admitted. And it was just kind of — I don’t even know if it’s fair to say that it’s a trial because I don’t know if we’re going to see that. I don’t think we’re going to see it long term. I think they were willing to do it because of the pandemic. And yeah, that’s kind of where it is.
Meghan Steenburgh: But there was some creativity in that, too, in terms of one of the alternatives, I believe was reported a 24 hour take home some essays, open book.
Josh Block: Yeah. Indiana tried that. And I think that was one of the ideas that I think it goes back to this notion of like, you have a little under two minutes to answer the hardest multiple-choice question you’ve ever been asked. And what part of lawyering — in what time when you’re practicing law, do you ever have to answer a question in two minutes? It doesn’t happen. You’re able to –
Meghan Steenburgh: Could be disbarred.
Josh Block: Yeah, right. I think what the interview subject there? I think it was Joe Patrice, what Joe was saying was like, here’s something that’s kind of closer to practicing law. Here’s a problem that you need to go. You’ve got time to go look it up. Log into Bloomberg Law, log in to your research product, figure out how to answer this question, figure out what are the elements right to it like you would on an exam in law school, which is very different than the bar.
Meghan Steenburgh: The third question that you pose in the series, why can’t we have one bar exam for all jurisdictions? Let’s talk through that. What was the most compelling reason, Adam?
Adam Allington: Well, I guess to just back into that question a little bit. The main issue at the heart of all the different state tests is this question of portability. And why should people who are taking the — relatively speaking, the same test on the same day have to retake the test again and again if they move between states. So, that was the issue that ultimately led to the push for the creation of the Uniform Bar Exam, which I think 41 of 56 jurisdictions offer. But again, getting back to your question and the reasons why we can’t have just one exam, you again run up against states who say they still want to be the gatekeepers. They want to be able to have input on the tests and a direct sort of role to play in determining what is important for lawyers to be admitted to the bar in their state.
So, there are some states who still feel quite strongly about keeping that role. And famously, New York recently has said they want to back out of the Uniform Bar Exam precisely because they feel that it doesn’t test the specific state laws that they want lawyers to know in New York. So, New York State Bar Association has recommended withdrawing from the UBE and going back to the older model that came before it, where you have a multi-state portion of the bar exams and then the state specific portion. And the term that people kick around is that the law of nowhere, that’s what they want to avoid is testing this law of nowhere.
Meghan Steenburgh: Do you get a sense that there are just so many players involved at every level that moving on from a bar exam would just impact so many and so significantly that changes are discouraged from that level? Josh?
Josh Block: That goes actually to a point that I think was made. It’s not just the bar exam, but if Ryan Hudnall was talking about there’s so many gatekeepers, there are so many things, so many people telling you who gets to be a lawyer and who doesn’t. And it starts with the LSAT, and there’s this move to the GRE. But first you have to do well on that. And then you have to do well in your law school. And then you have to pass the bar.
And so, every step of the way is a hurdle of somebody saying you get to do this and you don’t get to do that. And I think that’s right. There are so many players. And it’s one thing to the point of your last question with different jurisdictions, New York or Florida, California, in our podcast, we focus on Florida. And the person we speak to, Rich Maltby, talks about, like Florida very much. You’re not coming down here and practicing. I don’t care that you practiced for ten years in the State of Missouri. That’s not going to do it for us. You need to take our bar. And here’s a guy who’s ten years. And this is why this is really an episode about portability, about you’re going to pass a bar and you’re only going to be allowed admitted to practice in the state. Now, there are many states, and that’s why one bar exam for different jurisdictions. Is it going to be in the jurisdiction that you moved to? Maybe not and probably not.
Adam Allington: Yeah. A lot of lawyers in states like obviously, Florida, California, Virginia out where Josh and I are based. Those are states where you may have to get a Barbary prep course and do the whole thing over again, even if you’ve been practicing for a decade or more.
Meghan Steenburgh: And that time and that energy and then not knowing if you need to move your family some place and you don’t necessarily make it through, but you’ve been practicing 10, 15, 20 years.
Josh Block: When you hear Rich’s story, he doesn’t have any more confidence going into this test than the law student we speak to in episode one at the beginning.
Meghan Steenburgh: So, Adam, did you hear back from the ABA? Did you speak with the ABA about what they might do with this or talk about?
Adam Allington: I did not speak with the ABA for this podcast. I did reach out at some point to try to get them further for various reasons. The interview didn’t happen, but it wasn’t anything like they were trying to dodge me or anything. I did speak with someone from the National Conference of Bar Examiners, and they addressed a lot of these the other side of the argument in some of these cases. And I also thought because they’re the ones involved in crafting this, you may have heard of the next generation bar exam that’s supposed to be phased in by 2026, and they could really speak to the changes that test will have in response to a lot of the criticisms that we’ve been talking about, things like, is the bar in its current form, a good test of lawyering skills, for example. So, the next gen test, it has a more integrated format that allegedly better tests for these kinds of real-world problems that law students will encounter in the practice.
Josh Block: And they were the ones who do the multi state and the multi state, whether you be state or not, most jurisdictions offer the multi state. So, they’re kind of, I guess the big gatekeeper here, if there’s a single one — a single national one outside of your jurisdiction where you want to practice.
Meghan Steenburgh: Sure. Just trying all this great information and who’s listening and are those gatekeepers listening that can affect the change to say, yeah, okay, we’ve taken this to heart one way or another to say, okay, this is what it can look like going into the future. So, what was the most surprising — for each of you, what was the most surprising comment or in all, what do you walk away from having listened to this three part series, having put it together, what do you walk away from regarding the bar exam, Adam?
Adam Allington: I think for me, it just really landed home just how much infrastructure, time, money and energy is designed to train lawyers and then to throw this test in kind of on the back end just doesn’t seem like an efficient system. You hear a lot that like, well, doctors have to do residency and pass their board exams and things like that. But to get into Med school, there’s a lot of tests on the front end. You have to take the MCAT, then you have to pass medical school. And they kind of front load these big hurdles in ways that is a bit more efficient. And so, I just kept coming back to this idea of efficiency that a lot of people who’ve gone through law school and then for whatever reason, just decide maybe they didn’t pass the bar or something else. They decide not to go into the practice of law. It just seems like an inefficient system. And then you have the whole bar prep economy that’s involved in that as well. So, I just kept thinking about isn’t there a more efficient way we could do this even if we want to keep the bar exam as a test, there still seems like a better way that it could be done.
Josh Block: It’s funny that’s like Adam’s marketplace roots because I feel like from the very start of this, you were talking about the efficiency problem of this, which is very true. Look, for me, I think that I took the finished law school. I took the two months; I took Barbary every day. I took the bar. And just like everyone else who finished the bar, we’re like, I finished it. And I was like, well, that sucked. And I don’t know that it helped and I don’t know that it was the best way to tell if I’m ready to practice. And I’ve just continued to be sort of — it’s not like I’ve been some major change agent for like we should go away for this, but everybody’s like, well, we should do something. And then you’re like, oh, well, it’s hazing. We got hazed and we had to do it. I don’t know if I fell into that group, but I continued to be fascinated by this thing that we do and whether or not there’s a better way. And I think that — I don’t know that there’s one great takeaway I have, but I love digging into it and exploring it and looking at all the different ways that it works. I learned a lot. I knew a lot because of what I’ve done. And I think that anybody who has ever taken a bar exam or will take a bar exam or has thought about becoming a lawyer will get something from this series because this is a thing that you hear about. And I just like spending time in this place where we can talk about this and explore it
I don’t know what will come in the future, but it was interesting to see. And I do think with the pandemic, it seemed like maybe there was an opportunity for change. I don’t know that there really is. I guess time will tell.
Meghan Steenburgh: I think I fear it even more now.
Josh Block: I’m sorry.
Meghan Steenburgh: But if there’s one piece of advice for students, how do they keep this all in perspective?
Josh Block: Here’s what I would tell you. Answer C. That’s partially a joke and partially not. They literally say that in Barbary they say answer C. And then they know that enough people take Barbary and that you can throw the exam. It’s a tough test. You’re going to have to take the time. I don’t know how you would do it without doing Barbary afterwards. Try not to freak out, try to stay calm, try to focus when it’s your time to take this test. And there’s not much else to it. It’s just putting in the time, taking the practice exams, being as ready as you possibly can. And most people, I think, won’t feel great when they leave that test. Listen to our series. You’ll get a good feel for what’s coming.
Adam Allington: It also seems like law schools themselves are getting more involved than they were in years past creating staff positions designed to help students kind of navigate, making sure they have the resources they need if they need scholarships to purchase test prep or just to get extra tutoring or mentoring if they need help to be well prepared for the test. That seemed like a bit of a change from years past where I don’t know, Josh, correct me if I’m wrong, but a lot of lost schools would just be like we’re done here and go off and take the bar exam. Good luck.
Josh Block: I think it depends on the school. I think it depends on the school. Yeah, but I think there’s a movement towards that for sure. But there are a lot of schools that kind of already think about that way. Schools have a good sense of how their students might do.
Meghan Steenburgh: Well, thank you for joining us, Adam Allington, Josh Block, the Bloomberg Law podcast, UnCommon Law and thank you for listening. I hope you enjoyed this episode of the law student podcast. I’d like to invite you to subscribe to the ABA Law Student podcast on Apple podcasts. You can also reach us on Facebook at ABA for law students and on Twitter at abalsd. That’s it for now. I’m Meg Steenburgh, thank you for listening.
Outro: If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com. Subscribe via iTunes and RSS. Find us on Twitter and Facebook or download our free Legal Talk Network app in Google Play and iTunes. Remember, U.S. law students at ABA accredited schools can join the ABA for free. Join now at americanbar.org/lawstudent.
The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Podcast transcription by Tech-Synergy.com