Does the bar even measure the right skills?

The consternation over the low pass rate on the July California bar examination should cause a careful rethinking of the bar exam and hopefully lead to California joining the trend towards states using the Uniform Bar Exam. The State Bar has announced that 62 percent of first time takers from ABA accredited California law schools passed the bar. This is down from 68 percent the year before.

The crucial question is why. The State Bar needs to be much more transparent and explain this statistical drop. Is it a result of a conscious desire to limit the number of attorneys in California, a goal which should be widely condemned? I have heard many speculate that this is what is going and the State Bar would be well served to address this concern directly. Or is it a result of some law schools lessening their admissions standards in the face of a sharp decrease in law school applications? Or is it because of peculiarities in the test that was administered last summer?

I do not know the ideal pass rate for the California bar. The American Bar Association recently adopted a rule that requires that at least 75 percent of a law school's alumni who sit for a bar exam pass the bar within two years of graduation. My sense is that 75 percent is too high a threshold, especially for a state like California with a 62 percent pass rate. If the ABA enforces this, many law schools in California will lose their accreditation.

But I think that the more important question is whether the bar exam is measuring the skills that show a person is likely to be a competent attorney. Having taught students preparing for the bar for over 30 years, I am very skeptical and would like to see much more careful consideration of how to devise a bar exam that measures what it is purporting to assess: basic competence to be a lawyer.

In the meantime, it is time for California to follow the lead of many others states and adopt the Uniform Bar Exam as the test for admission to practice law in the state. Missouri was the first state to adopt this in 2011 and now 25 states and the District of Columbia use the Uniform Bar Exam. If every state did this and thus used the same bar exam, it would facilitate the interstate practice of law and enhance geographic mobility for lawyers. Reducing competition hurts clients by restricting their choices of lawyers.

The United States, unlike most other countries, does not have national licensing of lawyers. I long have believed that states have their own separate bars and bar examinations primarily to reduce competition by keeping lawyers from other states out. California, for example, requires lawyers seeking to practice in the state to pass the California bar exam, no matter how long or how competently they have practiced elsewhere.

I am skeptical that the knowledge a lawyer needs to have varies by state. But with the Uniform Bar Exam, each state still would set its own threshold for a passing score. Also, a state using the Uniform Bar Exam can impose other requirements. For example, New York will require the completion of an online course on New York State law and the passage of a short multiple-choice exam.

It is long overdue to have one bar exam that is used throughout the country, just as there are national medical board exams. Of course, there still will be arguments over where to set the line for a passing score. But then, as now, that should be a discussion done openly and transparently.