Several months ago, the Mississippi Supreme Court adopted a rule restricting the number of times an individual can take the bar exam. Under the new rule, people who fail the bar exam three times must go back to law school for 12 semester hours before they will be allowed to retake the exam. There are, of course, a number of reasons for rules like this, and some might argue that such rules increase bar passage rates and protect the public from attorneys who might not understand critical legal concepts. However, three-strike policies and other limitations on the number of times you can take the bar exam are bad for a number of reasons.
For one, people sometimes perform poorly on the bar exam because of external factors that affect them on exam day. Most of us probably know someone who got extremely sick on exam day or had to deal with the loss of a loved one right before taking the bar exam. Furthermore, this website has detailed at length how individuals have gone into labor during the bar exam, dealt with bats in the exam room, and endured a number of other issues while taking the bar exam. I remember hearing a story about one test-taker a while back who overslept one time he took the bar exam, and then locked his keys in his car during lunch another time he took the bar exam. Needless to say, this person failed both times. By decreasing the number of times individuals can take the bar exam before experiencing major consequences, bar examiners are increasing the likelihood that bad luck and other external factors can influence a bar candidate’s future livelihood.
Furthermore, limiting the number of times an applicant can take the bar exam before facing major consequences can put enormous pressure on test-takers. Repeat bar candidates already need to contend with the emotional strain and stigma of failing the bar exam in the past, and this trauma will only be compounded if applicants will face huge consequences if they fail the exam again. It is undeniable that people perform worse when they are under pressure, and some firms lessen stress by having a policy to assure employees that they will not be terminated from employment due to failing the bar exam the first time. Of course, people could argue that pressure is a part of the legal profession, so repeat test-takers should be able to cope with any additional stress. However, it is unfair to place this burden on bar candidates when they are already under enough pressure as it is.
In addition, policies requiring bar candidates to go back to law school if they fail the bar exam a certain number of times are misguided. As most people already know, attending law school does very little to prepare students to become practicing attorneys and pass the bar exam. Indeed, even if repeat test-takers are compelled to take law school courses on bar exam subjects, they will likely still not learn much of the black-letter law needed to pass the bar exam. This is because law schools typically teach students methods, like digesting cases and reciting facts and law, strategies that test-takers presumably already learned during their initial three years of law school. If rules required repeat test-takers to enroll in a bar review course, this would make more sense, since this type of regimen would ensure that the repeat test-taker is specifically studying to take and pass the bar exam. However, requiring bar candidates to head back to law school will do little to improve their odds of passing the bar exam.
Furthermore, limiting the number of times you can take the bar exam compounds the law school debt crisis. Repeat test-takers are usually in a dire financial situation unless they receive help, since they usually have to borrow money to attend law school and to support themselves while studying for the bar exam. If repeat bar candidates need to take additional law school classes before they can sit for the bar exam again, this will increase the amount of debt they have. Furthermore, making repeat test-takers spend more time without higher-paying attorney jobs makes it more difficult for bar candidates to pay off their debt.
In addition, it is unclear what threat to the public bar authorities wish to ameliorate with limiting the number of times you can take the bar exam. As most people understand, taking and passing the bar exam has little relevance to what type of lawyer you will become when licensed. Indeed, the bar exam often does not test much of the procedures that are necessary to know in practice. Furthermore, a number of high-profile individuals have failed the bar exam, so it is clear that people of all stripes can simply be bad at test-taking without posing a risk to the public. Furthermore, taking the bar exam usually costs hundreds of dollars that goes into the coffers of state bar authorities. As a result, it does not seem as if resources are being wasted on repeat test-takers.
It remains to be seen if additional states get on the three-strikes bandwagon and impose restrictions on the number of times you can take the bar exam. However, such limitations should not be implemented for a number of reasons. Not only do such restrictions increase the pressure on repeat test-takers and compound financial issues, but it is not clear which policy goals such limitations are aimed at achieving.
Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.