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The Bar Exam: Some History & Comparison

It's that time of year again...time for two to three days of squeezing out all the material that hopeful lawyers have been pounding into their heads over several months - the bar exam. To mark the occasion, here is a brief history of the exam itself, as well as a taste of what is required to become an attorney elsewhere.

Prior to the mid-1800s, there were no written bar exams. Instead, the path to becoming a lawyer led hopefuls through "apprenticeships, self-directed reading, and oral examinations." The next phase made use of a diploma privilege, which remained until the ABA began requiring exams in the 1920s. (A diploma privilege does still exist in Wisconsin, however.) The first state to employ a written version of the bar exam was Massachusetts, in 1855. (See Riebe, A Bar Review for Law Schools: Getting Students on Board to Pass Their Bar Exams, 45 Brandeis L. J. 269 (2007) for quoted material and historical information.)

Bar exams consisted only of essays until the Multistate Bar Examination (MBE) was developed by the National Conference of Bar Examiners. The MBE resulted from "a universal concern among bar examiners regarding the mounting burden of preparing and grading papers in the light of the...increase in law school enrollment" during the 1960s. (Eckler, The Multistate Bar Examination: Its Origins and Objectives, reprinted in the February 1996 issue of The Bar Examiner, at page 15.) It was added to the bar exam in February 1972 as a way to both increase efficiency of grading and aid in ensuring as much fairness as possible. The Multistate Performance Test (MPT), which requires analysis of a "closed-world" legal problem, was added in 1997.

In Texas, the bar exam spans three days, with Texas material tested on days 1 and 3 (through Procedure & Evidence questions on day 1, and essays on day 3), and the MBE on day 2. There are some variations in the composition of the bar exam between states, but regardless of where a person takes it, it is universally considered to be a very difficult test.

But take heart, everyone! It's not the hardest route you could travel to reach Attorneyville. As a point of comparison, I asked Visiting Foreign & International Law Librarian Saskia Mehlhorn about what is required to become a lawyer in Germany. The German process has three steps. Step one is the First State Exam (8 written exams taken throughout law school, a thesis that is a minimum of 40-50 pages long, and then defending the thesis in front of a commission). If you pass, then you move on to step two, which is a two year apprenticeship. Finally, step three is the Second State Exam (8 written exams spread over 2 weeks that are 5 hours each, then another 2-3 weeks developing a judicial opinion or brief from a 60-80 page case file, a presentation of your opinion or brief to a commission, and then an oral exam consisting of 4 sessions in 1 day). You only become an attorney if you pass the Second State Exam, and if you fail either the First or Second State Exam, you only have one chance to retake the exam.


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