Please welcome guest writer, Mihal Ansik, tutor for the Bar Exam Toolbox, to talk about how to balance personal feelings about justice with bar exam questions.
I can’t count how many times I died a little inside answering bar exam questions upholding doctrine that was legal, but, in my opinion, unjust. With fact patterns that require us to justify long term solitary confinement and concede to the flimsy 4th Amendment protections at border crossings, the bar exam demands complicity—fleeting as it may be—from those of us who feel responsible for challenging these very laws. So, when faced with an MBE question requiring me to affirm the constitutionality of deplorable prison conditions, did I engage in an act of resistance and fill in the answer aligned with what I knew to be true in practice, even if it was the wrong bubble? The honest answer is, I didn’t.
Of course, students oriented towards social justice may have found themselves confronted with similar dilemmas all the time in law school. By default, we’re wrapped up in the contradiction of studying and joining a system that is designed to maintain the status quo at the expense of marginalized communities. Yet, there was also space to confront these challenges directly, whether by speaking up in class, working with communities who bear the brunt of an unjust legal system, or organizing to transform legal education as a whole. I was fortunate to be able to do all of these things as a law student.
But, on the bar exam—that critical threshold between law school and law practice—I was unable to find an entry point for my advocacy. As an example, I loved my law school Criminal Procedure class and worked with the public defense clinic in my last year of law school. This did not save me from bombing more than a few practice Crim Pro essays early on. I was writing arguments that may actually have had a fighting chance in the courtroom, but they didn’t fit into the bar exam box, which required that Dan the Defendant get locked up in the end. So, how can we maintain our social justice values and still give the bar examiners what they are asking of us? To be honest, I’m not sure I have a complete answer, but here are some things that helped a bit:
1. Engage in Something Fulfilling Outside of Bar Study – Even for an Hour
I studied for the bar exam during the summer that Philando Castile was killed, which made staying inside and reading about purchase money mortgages seem absurd. Living in downtown Los Angeles, I was blocks from City Hall, where people were converging to call for justice for him and countless others. I agonized over whether I should keep putting in the hours I needed to learn fourteen different areas of law for an exam that was a couple of weeks away, or join the march outside my door.
At some point, I realized that the time I was spending mulling over this decision was time that could be spent showing my support for Mr. Castile’s family, and that being a body in the crowd, even for a couple of hours, was within my power to give. So I went outside and joined the march for a while, and then I came home and kept studying. This, in the scope of the fight for justice, was nowhere near enough. But it was time and energy I was able to offer before going back inside, and it gave my studies a renewed sense of purpose. More on that below.
2. Remember the “Why”
The bar exam can be a difficult means to a rewarding and impactful end. As I once heard the law professor and critical race scholar Gary Peller say, “Learn the language of the ruling class, and then use it to tear it down.” Or something like that. At the end of the day, getting all the way through law school only to sabotage myself on the bar exam on principle would not leave me feeling any more useful. So, I’d remind myself that on the other side of the exam, a lifetime of meaningful work awaited me. Keeping this “why” close at hand helped me get through it, even if it meant bubbling in answers that made me want to take a long shower afterwards.
3. Be Conscious of Your Language
We can answer questions with correct substantive law without adopting language we find problematic. I wasn’t going to write “illegal alien,” even if that’s how the fact pattern phrased it. And just as I had done during my public defense clinic, I’d refer to people by their names instead of “defendant.” (Though, as a tutor, it is my responsibility to let you know that to save time, you should just call Dan “D”.) I made conscious choices about my language, and even though I was still in the position of advancing a conclusion I didn’t buy, I did it in my voice, and with words that promoted dignity in some small way.
4. Reach Out to Friends
Whatever your special brand of bar exam grief may be, you don’t have to endure it alone! I had weekly check-ins with friends who were studying all around the world. These conversations were an opportunity for us to commiserate about everything that was terrible about the bar exam, from racist hypos to carpal tunnel. After a good venting session, we would pack up the feelings and get back to work, knowing that we’d be there for each other whenever we read about yet another “Reds and Blues” rivalry in a “high crime neighborhood.”
5. Submit Comments
While it may be hard to believe, the bar exam is written by human beings. These humans can be contacted through your local bar exam website, and may even be open to feedback about how the test could be improved. As I write this, the State Bar of California is seeking public comment about the bar exam pass rates. But even without an invitation, your opinion matters, so make your voice heard!
6. Can the Bar Exam Be A Site of Resistance?
If you have other ideas about how to reconcile mastering the bar exam with your commitment to social justice, please send them along!
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