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How the bar exam could change

Bar Exam
There are many unanswered questions when it comes to future plans for the exam.

There’s been much discussion and chatter about propelling the bar exam into the 2020s, but there’s not yet been a clear peek into how that will look.

Significant change is almost certain.

The National Conference of Bar Examiners recommended in January a “next generation” bar exam—with a new testing format and content— and expects implementation in four to five years.

What changes are possible? Let’s take a closer look and ask some questions, beginning with this: why bar exams?

The role bar exams play

When the purpose of the bar exam is questioned, different people respond with different versions of various themes, among them that the bar:

  • Ensures minimum competency to practice law
  • Protects the public, the consumers of legal services
  • Serves as a check and balance for law schools facing pressures to graduate students with weak grades
  • Levels the “playing field” by granting the same license to graduates from law schools with varying reputations and, in some states, schools with state and ABA accreditation.

Bar exams may also serve a “leveling” function for different graduates even from the same schools. As one law dean noted during a 2021 Association of American Law Schools annual conference panel, graduates from historically underrepresented backgrounds may benefit from bar exams versus diploma privilege to avoid the possible stigma of being “let in” under an “easier” standard.

The first two of these reasons get the most airplay. In the NCBE’s January report, it stated that the bar exam’s purpose is: “To protect the public by helping to ensure that those who are newly licensed possess the minimum knowledge and skills to perform activities typically required of an entry-level lawyer.”

This statement begs many questions, particularly as to knowledge and skills and public protection.

Ensuring minimal knowledge

It’s easy to say that all doctors must know human anatomy. Are there any equivalent legal subjects that every lawyer must know, from those who start in BigLaw to those who start in solo practice? If so, what are they, and what level of knowledge must lawyers possess on these subjects?

Must this knowledge be one of basic fluency or memorized detail? In nonspecialty areas, do lawyers just need to know when and where a referral is needed? Doctors may not all have to know how to perform neurosurgery, but should they all know when to refer a patient to a neurologist? One recent study suggests that all lawyers should understand
legal processes and the sources of law.

The 2021 NCBE recommendations indicate that the next-generation bar exam will test a reduced number of subjects—a great positive. The new exam will include questions in a new testing format that will still require closed-book knowledge but only of the seven subjects now tested on the Multistate Bar Exam (contracts, including Uniform Commercial Code Articles 1 and 2; constitutional law; federal civil procedure; criminal law and constitutional criminal procedure; torts; real property; and evidence), in addition to business associations, including agency.

Family law and trusts and estates, currently tested on the Multistate Essay Exam, are among the subjects slated for elimination. They’re also typically not required courses in law school. Should lawyers know general legal principles in these areas? What do lay people expect lawyers to know?

Even if we agreed that the MBE subjects plus business associations were the subjects comprising the common knowledge required for minimal competency, it’s unclear what level of detail within these subjects would be needed to answer the new testing formats.

The current MBE tests detail.

The next-generation exam will remain closed book but will include different types of questions, such as multiple choice, written response, and others, that are based around scenarios, apparently with some similarity to multistate performance tests.

Until sample questions are released, we won’t know what memorized knowledge will be needed to provide passing answers. Do digital-native lawyers with omnipresent smartphones—a situation not even part of science fiction when bar exams were adopted—need to memorize anything? Most lawyers agree that we should look up rules, even when we think we know them.

Another question about content stems from the reality that law schools teach subjects in silos, despite the fact that client representation, even in relatively simple matters, crosses multiple areas. For example, a client consulting a lawyer about a divorce may have rights, remedies, or obligations that require some knowledge of tax, trusts and estates, real property, bankruptcy, and intellectual property law.

Should lawyers have general, foundational knowledge of many subjects and the ability to research detailed rules? Many of my students, after reading plain-English primers I coauthored for self-represented litigants on civil litigation and criminal justice system basics, note that these and other “overviews” help them “pull together” knowledge, previously compartmentalized in silos.

Some judges also express concern that new lawyers appearing before them don’t see the “big picture.”

On the opposite end of the spectrum from broad to detailed knowledge, should lawyers have the option to prove competency by showing particular expertise in specialty areas?

For instance, should they be able to choose subject-specific exams comparable to SAT subject-matter tests?

Would proof of deeper knowledge in discrete legal areas, coupled with graduation from law school, indicate minimal competency to practice? Would such an option, as one path to licensing, help certain students gain useful knowledge, advance employment opportunities, and serve clients?

Ensuring minimal skills

The NCBE’s announcement that the next-generation exam will include more skills testing is critically important.

Many scholars who’ve studied legal education and licensing have long urged greater emphasis on skills.

Similar to the discussion of knowledge, though, there are many questions, including which skills new lawyers must possess, with what level of competence, and how best to measure that competence. The new exam will likely test client counseling and advising, negotiation, and investigation, along with other lawyering skills.

The MPT and state-specific performance tests already measure some of these. Would it be possible to expand the MPT right away, at least as an interim step while the next generation of exam is being built?

And maybe exams aren’t the best way to test skills competencies at all. Many respondents in recent focus groups noted that of all their work in law school and preparing for the bar, if anything, clinical courses were what best prepared them for practice.

Would successful completion of several clinical courses be sufficient proof of minimum competence and thus a viable alternative licensing path? What other competencies should new lawyers posses? On knowledge, should professional responsibility be tested only on the MPRE or added into the new format? Should exam scenarios include issues requiring an awareness of diversity and inclusion, substance abuse and mental health, and civics? Must competent lawyers know basics regarding our three branches of government?

Then there’s the ability to listen, arguably one of the most critical lawyering skills. Is listening too hard to test on standardized exams? There are six standardized foreign-language tests for college entrance that include listening. It can be done, especially with future exams administered in an online format where questions might be based on scenarios that applicants click on and listen to and with transcripts for applicants with hearing impairments and other special needs.

Meeting other purposes

Returning to the various purposes of bar exams, what about public protection?

Several studies, including 2020 research, found no nexus between the bar exam and attorney discipline. Do clients today hire lawyers the same way and with the same expectations as when bar exams were first adopted? Do people see the words “attorney at law” on a “shingle” and trust the person working in that office without other verification? Might easy-to-use databases maintained by state bars serve modern-day consumer protection functions?

Another purpose cited is to provide checks and balances in legal education. Do law schools have such grade inflation problems and related pressures that they pass large numbers of students who shouldn’t graduate? If so, and this is an if, are bar exams the best way to curb such abuses?

Given the correlation between 1L grades and bar passage, are there ways to address these issues earlier.

Should that be done before students invest three or four years of tuition and the cost of multiple bar failures?

The final purpose some assert is to prevent stigma, which is ironic because bar exams themselves and passing cut scores have been found to be discriminatory. Nonetheless, will lawyers from historically underrepresented backgrounds, licensed through alternative paths, not be taken as seriously as those who passed bar exams?

What’s the evidence so far of how recent graduates with diploma privilege and those licensed through New Hampshire’s Daniel Webster program have been treated? And what can we do to promote true equity and inclusion in licensing of future lawyers?

Looking forward

There’s great cause for enthusiasm about potential improvements that will come with a future generation of bar exams. At the moment, though, there are also many questions.

I firmly hope and believe we’ll best address these queries by thinking and working together. I’ve pledged to help the NCBE in any way I can, and I urge you to be alert to opportunities to do the same—to take part in surveys, pilots, and other studies, nationally and in your jurisdiction.

I also encourage you to remain part of the lawyer-licensing reform conversation and to join in the work that’s necessary to improve the future of our profession.