The History of the U.S. Bar Exam, Part I – The Law’s Gatekeeper

The following is a guest post by Katlin Kiefer, a former intern with the Digital Resources Division of the Law Library of Congress. She is a graduate student in the School of Information Sciences at the University of Illinois Urbana-Champaign.

Becoming a lawyer in the United States (U.S.) requires completing the ultimate dance recital: the bar exam. This exam separates prospective candidates from licensed lawyers. The exam’s name actually derives from this very idea of division by referencing the physical “bar” railing that would divide courtrooms. The outer side of the bar would be for public observation, while the inner side would contain the judge’s bench where the actual court proceedings would occur. Only permitted participants such as the judge, attorneys, and their clients were allowed to pass the bar into this official area. The bar has become synonymous with the law. The professional organizations of lawyers even took on the name of “bar associations.” These bar associations govern the legal profession much like the physical bar itself does, and the bar exam is one of their most prominent tools for regulating admittance.

The Creation of the Bar Exam

Law training, like many other professions in early America, started out as an apprenticeship or clerkship. Prospective candidates would pay a fee to an established lawyer for the opportunity of both academic schooling and practical experience. No law schools or bar associations existed in colonial times, but all the colonies had their own professional bar by 1750. (Susan Katcher, Legal Training in the United States: A Brief History, 24 Wis. L. Rev. 335, 339 (2006).) Each colony had its own standards for entry, usually requiring several years of experience in a law practice. (Katcher at 339-40.) Due to the expansion of the profession as the country grew, bar associations began to form in the 18th century as well and thus began to dictate the rules of legal education. (Katcher at 340.)

The initial bar exams were not written; they were oral examinations, usually administered by a judge in the jurisdiction in which the candidate wished to practice or by a lawyer already admitted to that bar. The first known bar examination in the U.S. was held in the Delaware Colony in 1783. Starting in the late 18th century and lasting to the late 19thcentury, these exams were considered very lax, being both casual in nature and not terribly difficult.

There is even a historical narrative sourced from the recollections of a man in the late 1850s of Abraham Lincoln, the 16th U.S. President, being an incredibly lenient bar examiner. (Robert A. Sprecher, Lincoln As A Bar Examiner, 42 Ill. Bar. J. at 7 (1954).) Lincoln personally helped several Illinois bar applicants who would be attempting to apply in an Illinois district that had recently increased their work experience requirement beyond the experience the men had completed. (Sprecher at 4-5.) Lincoln reached out to the men to tell them to apply in his district of Springfield instead, where the work experience requirement was not increased. (Sprecher at 5.)

One of the men, Jonathan Birch, met the future President in his hotel room, where Lincoln asked him how many books he had read, the definition of a contract, and a few other fundamental questions. (Sprecher at 5-6.) Lincoln remarked that Birch had read more than he had before being admitted, told Birch entertaining stories from his own early practice days, and abruptly finished the meeting by giving Birch his bar recommendation letter to be delivered to a judge. (Sprecher at 5-6.) Birch recalled that he was not even under the impression that he was being examined. (Sprecher at 6.)

The Evolution of the Bar Exam

The bar exam lost this mercy very quickly upon moving to a written format. The first state to offer a written bar exam was Massachusetts in 1855. This was initially an option for those who could not take the oral exam, but became a requirement in 1876 in the county in which Boston is located. Between 1890 and 1920, written bar exams were adopted by the majority of states.

The late 19th century saw various routes to licensure with the availability of apprenticeships, written exams, and diploma privileges for law school graduates. Law schools started emerging in the mid-1800s, but the numbers grew significantly at the turn of the century (15 schools in 1850; 102 schools in 1900; 146 schools in 1920). (Katcher at 348.) This expansion can be attributed to the shifting attitudes around academia as a more prestigious and efficient model than apprenticeship. (Katcher at 347-48.) Diploma privilege, automatic admittance to the bar upon graduation from law school, was implemented by states starting in the 1870s. At one time, 32 states offered this option, but today only Wisconsin still offers diploma privilege.

This decline can be traced to a declaration by the American Bar Association (ABA) in 1921, stating that they preferred to license attorneys on their performance on a written exam versus earning a diploma. States mostly agreed with the organization and over time abolished diploma privilege, opting in favor of the written exam over all other options.

Most written exams were just essays until 1972 when the National Conference of Bar Examiners (NCBE) decided to create a consistent test, the Multistate Bar Examination (MBE). The MBE is made up of multiple-choice questions on many fundamental topics. The Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT) were introduced in 1988 and 1997 respectively by the NCBE, once again for consistency. The MEE requires essays with a wider range of topics than the MBE, and the MPT requires the test taker to draft a practical work product such as a memo or brief. All three of these tests, MBE, MEE, and MPT, make up the most popular modern bar exam, which is collectively known now as the Uniform Bar Exam (UBE).

The “uniform” in the name refers to the use of the same exam across multiple jurisdictions. The ABA and other associations sought a test where a score could transition from one jurisdiction to another in the early 2000s. This came to fruition in the UBE in 2011. As of 2024, 41 U.S. jurisdictions have adopted the UBE, allowing test takers to transfer their scores to their chosen UBE jurisdiction. While all of these jurisdictions have adopted the UBE, they are still free to set their own minimum passing score. The lowest minimum passing score, found in several states, is 260, while the highest and most common minimum passing score is 270.

The bar exam in all its forms has always had critics. The COVID-19 pandemic greatly disrupted legal education and certification, as it did most of the world, and amplified the criticism of the current system. Several states allowed temporary diploma privilege during the crisis but all have discontinued that measure as of February 2021. The bar exam for some states went remote before returning to in-person exams, but the NCBE is planning a redesigned bar exam by 2026 that may offer this option again. Those who oppose the exam have proposed other models, with options such as experiential learning during law school or a time of supervised practice after law school. Legal training in the U.S. may go full circle back to its roots in an apprenticeship but, for now, the bar exam remains the standard.

Part Two, which discusses individuals who broke down barriers when they joined the bar, will be published tomorrow.

Resources Referenced

• Susan Katcher, Legal Training in the United States: A Brief History, 24 Wis. L. Rev. 335, 339 (2006). https://wilj.law.wisc.edu/wp-content/uploads/sites/1270/2012/02/katcher.pdf
• Robert A. Sprecher, Lincoln As A Bar Examiner, 42 Ill. Bar. J. (1954). https://www.isba.org/sites/default/files/lincoln/1954lincolnbarexamineribjaug.pdf

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