The Activist Guide to Passing the Bar Exam

 

Why do activists need a blog about passing the bar? Isn’t everyone going to take the same test? Isn’t studying for a standardized test the same for everyone, regardless of political bent or the reason they want to become a lawyer? Kind of.

It’s true that the vast majority of what is included on this blog is relevant to everyone seeking to become a licensed attorney. However, folks who went to law school because they want to change the world – to destroy injustice – come to the bar exam with a different perspective and therefore have a few different considerations.

First, while a lot of people view the bar exam as just another standardized test to get through, many social justice activists see the bar exam as an oppressive tool that keeps poor people and people of color out of the legal profession. While that is beyond the scope of this blog, it is clear that the bar exam had a race problem[1] and the legal profession has a race problem.[2]

It can be very difficult to pour your heart and soul into studying for an exam that you do not think actually serves the purpose it claims to serve, which is to test the minimal competence needed to become an attorney.[3] Yet, that is exactly what you need to do.

I often tell our 1Ls that the most radical thing they can do is focus on law school, graduate, and do the work they came to law school to do. The bar exam is part of that. Fighting the exam is not the fight you came to law school to have. You will be much better equipped to fight the exam after you pass it and obtain a law degree. So the best advice I have is to put aside the fight for 10 weeks and focus on tackling the exam.

The exam questions themselves can pose problems for social justice oriented individuals as well. Often, the issues people face on the bar exam are not issues you are expecting to face in your legal work. When they are, for example if you hope to do criminal defense work, the limited formulaic analysis you are expected to do is a far cry from the zealous advocacy you will do in practice. Not only is this frustrating, but it can cause you to overthink the questions you are being asked and can sometimes lead you down the wrong path.

It’s important to remember where you are and what your task is. Your only goal should be to give the bar examiners what they are looking for so that you can check this off the list of hoops you had to jump through on your way to your fulfilling your dream of becoming a social justice lawyer.  Writing answers that challenge the status quo or argue that the law is unjust will not get you points. Ultimately points is what you need to pass the bar. An anonymous bar grader somewhere may learn something, but your impact will not be far reaching. It will be much greater when you are licensed and fighting for clients and causes.

What is not on the bar exam can be equally as frustrating as what is on the bar exam. No one has a race on the bar exam (with the exception of an occasional MPT). There have been no same sex couples or queer folks on the bar exam. There are rarely poor people on the bar exam. Every property or decedent’s estates question involves someone with considerable assets and multiple properties. These questions probably do not reflect the community you come from or the people you want to serve. Individuals living with physical or mental impairments appear occasionally on an MPT or in a torts essay, but only ever as the victim of something that exacerbates their conditions.

What is on the bar that might be triggering? Rape. Assault. There is violence throughout the bar exam and survivors of such violence might have difficulty when faced with such questions. It is important to recognize that you will likely see these questions and to come up with a strategy before exam day for how you will handle it. You may want to work with a professional psychiatrist, psychologist, social worker, or other counselor during law school and the bar study period so that you feel ready to handle triggering questions should they arise on exam day.

This blog will feature some advice and words of encouragement for those taking the journey from social justice activists to social justice attorneys. My biggest advice – keep going. The world needs you to do the work you came to law school to do.

[1] For example, in July 2014, 87% of white graduates from ABA accredited law schools passed the New York State Bar Exam, compared to 81% of Asian/Pacific Islanders, 68% of Hispanic/Latinx, and 65% of Black African American graduates of ABA accredited law schools. This disparity is not isolated to a single exam. Similar numbers are found for each July exam from 2005-2014. Cumulative pass rates (for individuals who take the bar twice) demonstrate racial disparities as well. The MBE mean scores for first time takers who graduated from ABA accredited law schools and took the NY Bar Exam in July 2014 was 147.5 for Caucasian/White graduates, 143.5 for Asian/Pacific Islanders, 139.2 for Hispanic/Latinx, and 136.5 for Black/African Americans. Similar racial disparities were reflected in mean written scores and overall scores as well. The New York Bar Exam has a documented disparity between the cumulative passing rates of ABA graduates by gender as well, with female graduates passing at lower rates than male graduates on every exam from July 2010-July 2013. New York State Unified Court System Advisory Committee on the Uniform Bar Exam, Appendix 14 Data from NYSBLE, http://www.nycourts.gov/ip/bar-exam/appendices.shtml.

[2] Deborah L. Rhode, Law is the Least Diverse Profession in the Nation. And Lawyers Aren’t Doing Enough to Change That. The Washington Post. May 27, 2015, http://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/

[3] “The UBE is designed to test knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law.” National Conference of Bar Examiners http://www.ncbex.org/exams/ube/