President Biden: Risking Re-Election
Tammie Visintainer
In July, an estimated 40,000 people will take the bar exam. Twenty percent will fail—as I did. On the second time around, 65% will fail. As a student who did well in law school but hasn’t yet passed the bar exam, I believe we need new, more innovative, and equitable pathways to practicing law.
Around the country, colleges are questioning the value of standardized tests like the SATs: It’s time for the law profession to do the same, and not just because standardized tests tend to incorporate racial bias. The bar exam assumes that students have both time and money available to take expensive prep courses. But not all law students are single, unencumbered young people with 10-12 weeks to study and thousands of dollars for a prep course. Many underrepresented students, like me—with family responsibilities, health issues, and financial constraints—lack the resources to study full-time for months for an exam that law school has not prepared them for.
Meanwhile, we need more lawyers. Hundreds of defendants around the country languish in jail without lawyers. Here in my home state of Oregon, 77 people are in jail right now without access to an attorney. Innovative pathways to the law profession could provide more assistance to those who need it, while bringing well-qualified, well-trained, and more diverse attorneys into the profession.
Becoming a lawyer without taking the bar may sound like sacrilege to traditional attorneys. But during COVID, several states began experimenting with the idea. For instance, Oregon and Washington adopted an “emergency diploma privilege,” which enabled bar applicants in July 2020 to become fully licensed as long as they graduated from specific law schools in 2020. Wisconsin also allows a ‘diploma privilege’, which permits Wisconsin law graduates to secure a license to practice law in Wisconsin without taking the bar exam.
To make sure all qualified law graduates have the opportunity to enter the profession and increase representation for those who most need it, we must reconsider the bar exam. These three paths could help thousands of law graduates unfairly left behind.
Teach students to pass the bar exam in law school
Currently law schools have a set of required classes, but those classes are not designed to prepare students for the bar. Law school teaches you to think and write like a lawyer with no “right or wrong” answers. The bar exam questions are either right or wrong. Unfortunately, law classes do not adequately prepare graduates for the bar, though some foundation is provided, to a limited extent.
Offer experiential pathways during law school
The medical profession requires medical students to complete four years of medical school, including mandated hands-on health care related activities. Law school provides only a limited number of opportunities in clinical experiences such as family, business, or human rights law.
In 2021, Oregon proposed the Oregon Experiential Pathway (OEP), a curriculum-based pathway for law students to complete a required set of experiential learning credit hours. Students would design a capstone portfolio and submit it to the Oregon Bar examiners’ office, which would determine whether the portfolio demonstrates the minimum competence to pass the bar. Such programs ensure equitable opportunities for law students to demonstrate their competency in the law. The Oregon Supreme Court has approved this path; a task force is now creating an implementation plan.
Apprenticeship or ‘fellowships,’ under supervision
Medical students complete four years of medical school and complete a residency of one to five years after graduation, depending on their specialty.
Similarly, an alternative path for law graduates would require them to complete a supervised practice pathway to ensure that law graduates work under a supervising lawyer for a minimum of 1,000 or more working hours. Once the supervised hours are complete, the applicant submits their work portfolio to the bar examiners for competency. Maine already allows people to take the bar exam if they complete two-thirds of the degree requirements before pursuing practice for a year with an attorney.
The bar exam has long ensured that only qualified attorneys practice law. But alternative paths, properly designed and executed, would not undermine the quality of lawyers, only the elitism that pervades the law profession. Wisconsin’s diploma privilege works. Ongoing bar licensures requirements, such as completing continuing education credits and specific character and fitness requirements, ensure licensed attorneys remain updated on legal matters. People deserve and need access to quality, affordable, and knowledgeable attorneys. Many paths lead students into law school, so equity demands that we create multiple innovative pathways to the profession, too.
