Page 19 - Delaware Lawyer - Summer 2022

weeks, largely detached from the social aspects of normal life. Then there are the exams themselves, requiring two to three days of intense focus. And loom- ing over everything are the stakes. The exams are essentially zero-sum. You either pass or you fail. These character- istics would surely qualify bar exams as rigorous under conventional notions. But what if we judged their rigor based on the extent to which they serve their intended purpose?
In April, the Nevada Supreme Court issued an order suspending the inclu- sion of the Multistate Bar Exam (MBE) as part of its July 2022 exam administra- tion.16 The Court cited various reasons for the ruling, including empirical anal- yses conducted by AccessLex research- ers showing only slight relationships between MBE scores and perceptions of lawyering skills among Nevada law- yers. The Court essentially concluded that the MBE lacked sufficient rigor to be included as part of the exam. Some might assume that the exam will be eas- ier without the MBE. Even if true, dif- ficulty that is not tied to an articulated purpose or goal is needless and often harmful.
In the Diversity Project report, the Bar Exam and Licensing Working Group recommends reducing the num- ber of “fair game” bar exam subjects
as well as the number of exam essay questions. Taking cues from exams in neighboring states, the working group determined that the negative impact of the “unusually high” number of test- able subjects and essays outweighed their contributions to the purpose of the exam. In other words, while these components make the exam more dif- ficult, the working group did not feel they made the exam more rigorous.
The conception of rigor that I pres- ent in this article is really an expression of relevance. Are the requirements of bar admission relevant to their purpose? This question takes on heightened importance in the context of diversity. Non-rigorous or irrelevant require- ments function as harmful barriers that impact non-privileged groups dispro- portionately. Removing these barriers should be the primary focus of bar admission reform efforts nationwide.
The Delaware Bench and Bar Diver- sity Project was truly a rewarding expe- rience for me. The leadership and vision provided by Chief Justice Seitz and Associate Justice Montgomery-Reeves empowered the working groups to engage in deep reflection about the diversity challenges facing the bench and bar. As the recommendations are being further considered, I encourage Delawareans to keep open minds to new
ideas and approaches. The fundamental purpose of the bar admission process is to assess minimum competence to practice law. If Delawareans manage to design a process truly focused on this purpose, I am confident the bench and bar will increasingly reflect the state’s diverse demographics. Moreover, the public could be more confident that its lawyers are being selected through a truly rigorous process.
NOTES
1. Kriston McIntosh et al., Examining the Black-White Wealth Gap, BROOKINGS INST. (Feb. 27, 2020), https://www.brook- ings.edu/blog/up-front/2020/02/27/ examining-the-black-white-wealth-gap.
2. Id.
3. QuickFacts: United States, U.S. CEN-
SUS BUREAU (July 1, 2021), https:// www.census.gov/quickfacts/fact/table/US/ PST045221.
4. 2021 1L ENROLLMENT BY GEN- DER & RACE/ETHNICITY, AM. BAR ASS’N, https://www.americanbar.org/ groups/legal_education/resources/statistics. 5. Aaron N. Taylor, The Marginalization of Black Aspiring Lawyers, 13 FIU L. REV. 489, 490 (2019).
6. Aaron N. Taylor, Robin Hood, In Re- verse: How Law School Scholarships Compound Inequality, 47 J.L. & EDUC. 41, 61–62 (2018).
7. ACCESSLEX INST., ANALYZING FIRST-TIME BAR EXAM PASSAGE ON THE UBE IN NEW YORK STATE (2021), https://www.accesslex.org/NYBOLE.
8. Id. at 5.
9. New ABA Data Breaks Down Bar
Pass Rates by Ethnicity, Race, AM. BAR ASS’N (May 9, 2022), https://www. americanbar.org/news/abanews/aba-news- archives/2022/05/new-aba-data-breaks- down-bar-pass-rates.
10. Id.
11. Lawyers by Race & Ethnicity, AM. BAR ASS’N, https://www.americanbar.org/ groups/young_lawyers/projects/men-of- color/lawyer-demographics (last visited June 6, 2021).
12. Rigor, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam- webster.com/dictionary/rigor (last visited June 21, 2022).
13. Exodus 1:13 (American Standard Ver- sion).
14. In re Reardon, 378 A.2d 614 (1977).
15. Id. at 617.
16. Order Regarding Modified July 2022
Nevada Bar Examination, Supreme Court of Nevada (2022), https://nvbar.org/wp- content/uploads/Order-re-July-2022-Bar- Exam.pdf
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