The long-offered and frequently invoked justification for the bar exam is that the public must be protected from legal incompetence. That is a legitimate, worthy, and necessary concern. Incompetent attorneys erode society’s trust in our profession. Bad lawyering costs clients their money, their rights, and sometimes even their lives. 

Yet in their fervor to do whatever it takes to administer bar exams in the midst of a national emergency, states have lost sight of the reason for needing these tests: the need to ensure legal competence. 

In the last two weeks, a flurry of states canceled their in-person July and September tests and replaced them with unportable, redesigned, untested, emergency online October exams. Even putting aside the failed online administration of the high school Advanced Placement tests, the American Board of Surgery Qualifying Exam, and, most recently, the test run of Indiana’s bar exam, and even ignoring the inherent inequalities, tremendous costs, invasive AI software features, and utter lack of notice that plague these states’ plans, the truth is that these reworked October tests cannot accomplish their stated purpose; by their very nature, these new exams cannot test our legal competency.

I will soon sit for one of these online October exams in Pennsylvania. 

For the first time, Pennsylvania candidates will not be allowed to use a blank piece of scratch paper or a pen. We cannot take notes, underline dates, add up numbers, outline an essay, or diagram a complex legal relationship (although that is precisely what my $3,500.00 bar prep course is teaching me to do). So I have to ask: Do competent lawyers leave their legal pads and writing implements at home when they meet with clients, attend depositions, and appear in court? 

Another new rule is that we cannot wear earplugs during the exam. Do all competent attorneys also prefer a noisy space to write their briefs?

During this online October exam, we will now not be allowed to use the bathroom during a testing session. Is this because our employers and the judges who we appear before will also regulate our bathroom usage? Is this key to a competent lawyer’s success? 

In a normal in-person Pennsylvania bar exam, candidates are provided printed copies of the test’s seven multi-page essay questions, but during our online exam, we are prohibited from printing or possessing physical copies of the test questions. Do competent lawyers only read from digital screens? Is reading a hard copy of a court’s opinion, deposition transcript, or a witness’ statement a sign of incompetence? 

To be clear, I understand that these measures have been implemented for the legitimate purpose of preventing us from cheating. I believe that the members of the Pennsylvania Board of Law Examiners are good people who are doing what they think is best in an unprecedented global emergency. I realize that there will be problems with any possible solution that is proposed. I know that adaptability and resilience are worthy skills that would serve any legal professional and that harping on these changes is not the most productive use of my time right now. I recognize that to non-bar candidates, whether the Class of 2020 is allowed to print out a fact pattern or use a pencil feels trivial in the grand scheme of things, especially during these trying times. 

But to us, this is the test that will forever decide whether we can become lawyers, and the unintended by-product of these haphazard anti-cheating measures in our newly-concocted, late-announced exams is that those exams cannot be said to test our competency. 

Instead, they will test which of our houses are equipped with quiet home offices and which of us live in urban areas where outside noise is unavoidable. They will test who is naturally talented at mental math and who did not have enough time to perfect that skill when given only a few weeks’ notice that it would be a part of the most important test that they would ever take. They will test who purchased an extra-large computer monitor and whose eyes strain to read on a digital screen. They will test who has parental or partner support and who was expected to homeschool their children while studying. They will test who can make it another few months without extra income and who needed to begin working before the twice-delayed exam in order to make ends meet. They will test who has a strong internet connection and who has a weak bladder. They will test who got lucky and who is suffering during an international pandemic. 

Is this what legal competence is all about? 

For more information on this topic, please see the recording of the webinar hosted by JURIST and United for Diploma Privilege on July 9th entitled: “Diploma Privilege and the Future of the Bar Exam.” Please also see the JURIST Editorial Board’s statement on Diploma Privilege entitled “The Diploma Privilege Manifesto“. 

Rachel Goodman is a May 2020 graduate of Temple Law School and Pennsylvania bar exam candidate. 

Suggested citation: Rachel Goodman, Competency and the Remote October Bar Exams, JURIST – Student Commentary, July 27, 2020, https://www.jurist.org/commentary/2020/07/rachel-goodman-remote-bar/.

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.