(Photo of Joan Howarth by Nicole Sepulveda)
For the last three decades, complaints about the bar exam were common but change was minimal. But Joan Howarth and Deborah Jones Merritt wanted to do more than grumble.
While most lawyers take the bar exam and then never want to think about it again, Merritt, 69, and Howarth, 74, have never forgotten. They have been diligently committed to keeping the conversation going about changes to the traditional exam, which launched 53 years ago.
Each marched forward, conducting research over 25 years that investigated why licensing processes need to change and what remedies would halt the inequities stemming from the current exam process.
Now, with the Uniform Bar Exam due to sunset in 2028, these two retired academics are the go-to advisers for jurisdictions evaluating wide-ranging options for licensure as they bring the duo’s ideas on reform closer to reality.
“They are two incredible thought leaders in the licensure space,” says Brian Gallini, dean of Quinnipiac University School of Law, who worked with both women on the Oregon State Bar’s reform efforts. “We should have been listening to them much earlier.”
(Photo of Deborah Merritt by Maddie McGarvey)Merritt, professor emerita at Ohio State University Moritz College of Law, was co-principal investigator of the landmark 2020 report Building a Better Bar. She left teaching a year later to devote her retirement years to bar reform and has been hands-on in reform efforts around the country, including those in Oregon, Nevada and California. In addition, she has spoken to groups in New York, Ohio, Indiana, Utah, Minnesota, Michigan, Texas and Massachusetts about bar reform.
Howarth, who was dean at Michigan State University College of Law from 2008-2016 and, as of July 1, professor emerita at University of Nevada Las Vegas William S. Boyd School of Law, wrote the 2022 book Shaping the Bar: The Future of Attorney Licensing. Along with advising other states’ efforts, Howarth chairs Nevada’s Foundational Subject Requirement and Performance Test Implementation Task Force and is a member of the Commission to Study the Administration of the Bar Examination and Licensing of Attorneys. The commission developed the Nevada Plan, a unique three-stage licensing process mimicking that of medical licensure.
The pair, who met in 2016, also is involved with the National Center for State Courts’ look at practical suggestions for licensure reform: They both sit on its Committee on Legal Education and Admissions Reform’s bar admissions working group.
“The two of them are quite the dynamic duo,” says Susan Smith Bakhshian, the director of bar programs and a clinical professor of law at Loyola Law School in Los Angeles, who worked with both women on California’s failed attempt to create a portfolio bar exam. “They work together, not in a way of two people who have exactly the same skills, but they complement each other.”
Both women’s focus on the bar exam bloomed in the 1990s.
For Merritt, the obsession started after a colleague asked her to analyze statistics related to states raising their passing scores.
“The first thing that actually jumped out was that states were deciding to raise the score just as significant numbers of women and people of color were coming into the profession,” she says. “That naturally concerned and outraged me.”
Meanwhile, Howarth was then a professor at Golden Gate University School of Law, “very much a public-interest, nonfancy law school for working adults,” she says. She saw firsthand how the current system favors students with the financial resources to afford expensive bar prep and unpaid time off to memorize myriad legal standards, she says.
As educators, each saw good students who performed well in classrooms, moot courts and legal clinics but couldn’t pass the bar. Many times, it stemmed from racial and other inequity issues, they say. In 2023, white bar-takers in the U.S. had a first-time pass rate of 84%; Asians, 74%; Hispanics, 71%; and Blacks, 58%, according to the ABA Section of Legal Education and Admissions to the Bar.
And each encountered many law students who were not practice-ready at graduation, as law school curricula and the pencil-and-paper bar exam emphasized memorization over skills.
“I had been a very pointy-headed, front-of-the-classroom professor,” Merritt says, “but coming into the clinic, I just thought, ‘Wow, there’s all these ways in which we’re not preparing our students if they don’t take a clinic and really serve clients.’”
When the pandemic initially hit, academic peers fretted as jurisdictions were forced to rethink the necessity of in-person bar exams. But “Joan said, ‘You know, there’s an opportunity here for us to speak up about the bar exam,’” Merritt adds.
And they did just that. In March 2020, they worked with a group of other academics to publish “The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action” in the St. Louis University School of Law Legal Studies Research Paper Series.
“My only complaint is, I can’t keep up with Debby in terms of her productivity,” Howarth says. “She’s supersmart and superbright and has a motor to keep working that is really remarkable. We are very happy to keep learning from each other.”
Howarth’s “values are not just ones that I admire and share, but she’s so committed to them,” Merritt adds. “I strive to be as committed.”
Still, they don’t always agree on tactics. It took Howarth a while to convince Merritt to work on Nevada’s new multiple-choice exam.
“I never in my life thought that I would spend part of my retirement working on a multiple-choice test,” Merritt says. “But in Nevada’s plan, it works.”
Howarth anticipates that 10 years from now, the licensing process will vary from state to state, and most new lawyers will have had some kind of supervised practice before becoming licensed.
“People will get that that’s fundamentally necessary for client protection,” she adds. “And we will have multiple pathways for licensure that are less expensive and that will help us to have a more inclusive and more effective profession.”
Merritt finishes Howarth’s thought: “And one that serves clients more effectively, and I hope, also gains more recognition among states—that if you’ve been licensed by one state, then you’re a competent lawyer, and you can simply come and practice in our state.”
These days, they are excited to be change-makers watching their own ideas come to fruition, with 13 jurisdictions making or considering moves to change licensure, according to the website devoted to bar exam changes that Merritt maintains.
“Sometimes, we still have trouble believing it is happening,” Merritt says. “Sometimes, we look back and say, ‘Remember, even as recently as 2016? Did we think any of this was possible?’”
Joan Howarth and Deborah Jones Merritt
Oregon State Board of Bar Examiners
