Scholarship on Bar Exam Alternatives Needed

This week, our students sat for bar exams across the country.  Many of us may have once again been thinking about the myriad of critiques we have about the current bar exams – critiques that have been published time and again.  Over the years, we hoped the critiques would motivate the National Conference of Bar Examiners [NCBE] to explore and pilot test alternatives.  Thus far, that has not happened.

While there likely are many reasons the NCBE has failed to develop and pilot test alternatives, one oft-heard reason for not changing bar exams is that while the current exams are not perfect, they are the best that can be done.

As Professors Eileen Kaufman, Carol Chomsky and I recently wrote elsewhere – this is simply not true.  We note that for the last ten years, the Law Society of Upper Canada has been administering an open book multiple choice test that covers a much wider range of competencies than is currently tested in the U.S. and that asks questions in context of how lawyers use information when representing clients.  That is just one example of a viable alternative.

As academics, while most of us don’t have the same psychometric background as NCBE employees, we do have the ability to engage in scholarly research and publish what we find.  What are other countries doing?  What licensing methodologies from other professions could we adapt? What are we doing in our own courses that could be adapted to a law licensing process?

There is momentum for change. States such as California have begun to look at the bar exam’s content validity as well as bar exam passing scores.  Professor Deborah Merritt and Dean Nick Allard have both made persuasive arguments as to why bar leaders should convene a  national task force to examine potential bar exam reforms.

The current momentum for change recognizes that existing bar exams have fundamental flaws that should be addressed.  As academics, we can build upon this momentum by researching and writing about alternatives. We can encourage our law review student editors to consider symposium issues focused on bar exam alternatives. We can create pressure for meaningful change by showing that change is possible. Let’s do it.


4 Responses

  1. I shared Andi’s post with my colleagues on the Vermont Law School faculty – thanks for posting.

  2. I agree that there needs to be better alternative to the current bar exams states administer. At the same time, I don’t think one can advocate for the type of bar exam used by the Law Society of Upper Canada without also advocating for the required experiential training component. Admission to practice in Upper Canada requires not just the open-book exam but also an experiential training component consisting of either a 10-month articling requirement (supervised work requirement) or the Law Practice Program (LLP) consisting of a 4-month training course and a 4-month work placement. For law graduates choosing the LLP, the training course replicates the experience of working in a law firm using interactive hands-on simulations that can be done on-line or in person, depending on the provider. Some Canadian law schools offer the LLP. The LLP provider then works to find law placements for the students. While the type of bar exam used by the Law Society of Upper Canada may still be better than the U.S. bar exam, the Law Society recognizes the need for experiential education and training. Without the experiential component, the bar exam in Upper Canada might be much different. I believe one has to support both parts of the Canadian approach if we truly want a better way to admit students to practice. Law schools can fulfill the experiential education and training component if we required every student to devote 15 credits to simulation courses and 15 credits to a combination of in-house clinical and externship courses.

  3. Peter, these are great and thoughtful comments [as always]. I agree with you that we need to find a way to integrate experiential components into the licensing process, and that the multiple choice portion of the LSUC alone is an inadequate licensing tool. My main point was that alternatives exist and that faculty should be writing about those in the hope that even if the NCBE does not initiate changes, some states would be willing to engage in pilot projects. For example, if we want law schools to fulfill an experiential education and training licensing component via clinics and simulations, what methods could be used for bar examiners to verify students achieved a baseline level of competency in the skills taught in those courses? As academics, we can thoughtfully explore viable alternatives as part of our scholarly work. It is my hope that we will do that.

  4. A succinct and timely commentary, Andi.

    An example to illustrate the importance of your point that we need to research and publish on bar exam reform: Various states have appointed commissions to review the question of whether to adopt the UBE, and those commissions proceed to do research to find relevant studies, commentaries, etc. Professors who have written on the matter have been cited in reports from some of these state commissions, or from related organizations.

    It is not so much the NCBE, but individual states looking to engage in reform (California mostly), that might soon be looking for quality published research on reforming the bar exam–if they haven’t been already.

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