Looking Ahead: The Performance Test on the Bar Exam Post Covid-19

Even amidst great uncertainty as to how the Covid-19 pandemic will impact future bar exams, we have already seen a few “when the dust settles” articles addressing how best to move forward with bar exams after the effects of the pandemic have waned.[i] While there are justifiable calls to rethink the exam entirely, especially in light of disparate outcomes based on race,[ii] multiple commentators have highlighted the need to enhance the exam’s focus on the performance test.[iii]

A telling indicator of the importance of the performance test appears in the Phase One Report of the National Conference of Bar Examiners’ (NCBE’s) Testing Task Force, which is conducting “a future-focused study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing legal profession.”[iv] Among the points made most frequently by various bar exam stakeholders during listening sessions were the following: “The MPT [Multistate Performance Test] is the strength of the current exam” and “Lawyering Skills should be emphasized over subject matter knowledge.”[v] The performance test remains the only vehicle on the bar exam that directly evaluates lawyering skills and not subject matter knowledge of—some would say rote memorization of—law, which is tested by both the Multistate Bar Exam (MBE) and essay questions. As such, it ranks high as to testing validity and has great potential as an evaluator of competence. 

The NCBE, which currently provides the testing instruments used on the vast majority of state bar exams,[vi] is an influential force in the bar exam world, and it approaches change at a glacial pace.[vii] Hence, there is good reason to think that, while the pandemic might lead to changes in the manner of exam administration (e.g., remote administration in lieu of in-person), the heavy majority of states will continue to use the NCBE’s three tests: the MBE, the Multistate Essay Exam (MEE), and the MPT. Hence, a closer look at the most important of those three, the MPT, and ways in which performance testing can be improved is in order. What follows is a review of the current status of the performance test on bar exams in the United States and some thoughts on enhancing performance testing moving forward:

What is the performance test, and what is its purpose?

A performance test assigns a specific written lawyering task (e.g. memo, brief, or a letter), to be completed by the examinee relying on a closed universe of provided factual and legal materials. Performance tests, unlike essay questions and MBE questions, require no advance memorization of doctrine, as they provide a Library, which includes all the needed legal authorities in the form of cases, statutes, rules, regulations, or some combination thereof. The facts are presented in the File, usually through assorted documents such as transcripts of witness interviews, correspondence, etc. The allotted time for completion of a single performance test is 90 minutes.

The performance test is a creature of the ABA’s landmark 1992 MacCrate Report, which called on law schools to enhance training in assorted fundamental lawyering skills.[viii] The NCBE responded to the MacCrate Report by crafting the MPT as an instrument to evaluate six of the fundamental lawyering skills listed in the report: (1) Problem Solving, (2) Legal Analysis and Reasoning, (3) Factual Analysis, (4) Communication, (5) Organization and Management of a Legal Task, and (6) Recognizing and Resolving Ethical Dilemmas.[ix] The NCBE began offering MPT items to jurisdictions in 1997.[x]

How is the performance test currently being used on the bar exam?

The NCBE continues to produce the MPT, and 44 states administer it on their bar exam.[xi] Thirty-six of those states administer two MPT items, pursuant to their administration of the Uniform Bar Exam (UBE).[xii] Some of the remaining eight administer one MPT, and some administer two. In addition, Pennsylvania creates and administers its own performance test,[xiii] as does California.[xiv] In total then, 46 states administer at least one performance test on their bar exam. Only Florida, Louisiana, Michigan, and Virginia eschew performance testing.[xv]

Is the performance test evaluating all of the MacCrate skill sets adequately?

As I discussed in detail in a 2015 article, the performance test is not living up to its potential, as typical test items implicate mostly just the core skill set of legal analysis and reasoning.[xvi] It remains not at all clear that the performance test is encompassing all six of the MacCrate skill sets on a consistent basis. Most notable among the skill sets that remain under addressed are (1) Problem Solving and (3) Factual Analysis. 

Problem Solving

The MPT occasionally implicates problem solving through a test item requiring an evaluation of multiple competing approaches to a given client’s problem—for example, MPT2 on the July 2019 exam, in which examinees had to evaluate the merits of two different estate planning approaches for a mock client.[xvii] In the last several years, neither California’s nor Pennsylvania’s performance tests has presented comparable test items. 

Factual Analysis

As to factual analysis, because the source materials in the File include both relevant and irrelevant facts, the performance test does a good job of testing an examinee’s ability to identify relevant facts within a given set of materials. However, among the core competencies encompassed by the skill set of factual analysis are determining the need for further factual investigation and planning a factual investigation.[xviii] Performance tests have not encompassed these competencies. Indeed, in the past several years, no performance test has tasked examinees with identifying what additional facts would be useful and drafting a discovery plan for obtaining those facts. 

To be fair, given that the performance text currently plays a limited role on the exam, it is perhaps not possible to consistently encompass all of the MacCrate-inspired skill sets. The addition of more performance tests, or multiple-choice questions within performance tests, discussed below, could help in this regard. 

Does the performance test make adequate use of statutes and regulations as legal sources?

Of course, statutes and regulations are central to much of law practice today—so much so that numerous law schools are requiring first-year students to take a course on legislation and regulation. It would seem beyond dispute that all examinees on every bar exam should be required to display competence in reading and applying a statute or regulation without the aid of a case interpreting the statute or regulation at issue.  Neither MBE questions nor MEE questions (nor state-specific essay questions) directly require examinees to do this. In contrast, the performance test easily can. Unfortunately, however, statutes or regulations (or comparable types of non-case authorities) do not consistently appear on recent performance tests—to say nothing of the four states that do not administer a performance test at all. 

To the NCBE’s credit, at least one of the two MPT test items in each exam administration since 2010 has included at least one statute, rule, or regulation.[xix] It is not clear the extent to which examines on these various MPTs needed to reason directly from the statute, rule, or regulation (as opposed to reasoning from a provided case that interpreted the statute, rule, or regulation) to resolve an issue, but a cursory review suggests in several cases that, to a goodly extent, they did. By way of example, one of the MPT items on the February 2015 exam included only a statute and regulations in the Library, and examinees were tasked with “parsing . . . HIPAA regulations” in order to answer effectively.[xx]

 In contrast, however, since shifting to the 90-minute performance test format in July 2017, California has included only cases as authority on its performance tests through the February 2020 exam.[xxi] This reflects a major failing of the California bar exam. 

The Pennsylvania examiners have done a better job, having deployed statutes as part of the law library on several different performance tests,[xxii] the first of which (February 2017) I highlighted in an earlier post. Still, though, given that there is only one performance test on each administration of the Pennsylvania exam, each Pennsylvania performance test with only cases (and there continue to be several of those[xxiii]) represents an exam that does not evaluate the fundamental competency of reading and reasoning from a statute, rule, or regulation. 

How can bar examinations make greater use of performance tests?

Ideally, all 50 states would administer at least a bare minimum of two performance test items on every exam. Though progress is being made toward that goal, we are not there yet. 

First, as noted earlier, four states do not administer a performance test at all. One can only speculate as to what reason, aside from inertia, leads the bar examiners in Florida, Louisiana, Michigan, and Virginia to forego a testing instrument of such value.

Second, as also noted earlier, several states that use the MPT outside the construct of the UBE, as well as Pennsylvania and California, administer only one performance test, not two. The use of two test items, as required for the UBE, affords an opportunity to evaluate a greater array of lawyering skills via the performance test. The use of only one relegates the performance test to playing a minimal role on the exam overall. By way of illustration, while the two MPT items in UBE jurisdictions count for 20% of the exam score, the one MPT item in Pennsylvania counts for only 11%, and the one MPT item in Nevada counts for only 10.5%.[xxiv]

Third is the broader question of expanding the use of the performance test beyond just two test items and the current 20% allocation on the UBE. As I noted in my 2015 article, this is a tougher challenge.[xxv] The MBE counts for such a large chunk of the score on the exam—50% in UBE and most other jurisdictions—because it is a psychometric anchor for the exam. In other words, the MBE has very strong testing reliability. As a multiple-choice exam that tests knowledge of various areas of substantive law, thereby calling for rote memorization, the MBE has weaker testing validity. In contrast, the performance test has high testing validity, but, because of its size and the subjectivity inherent in grading, has lower testing reliability. The NCBE prioritizes strong testing reliability for its products and hence allots greater percentages to the MBE and essay questions, 50% and 30% respectively.[xxvi]

There are many possible approaches that could allow for increased use of, and a greater scoring weight allotted to, performance tests, but one suggested by Jason Solomon in his recent article bears serious consideration. Solomon suggests the use of multiple-choice questions, which inherently afford greater testing reliability, within a performance test format.[xxvii] Instead of, or in addition to, writing an answer, as required on the traditional performance test, examinees would answer a series of multiple-choice questions on the materials provided in the test and on the most effective ways to resolve the issues presented. Unlike MBE questions, these questions would not require examinees to recall memorized legal doctrine, but rather to carefully review the provided factual or legal materials. Multiple-choice questions within a performance test format could also be an effective vehicle for adding legal research to the bar exam, as even within a closed-book format, examines could be asked questions about the most effective research strategy to build on the provided materials.[xxviii]

Conclusion

In sum, to improve the bar exam going forward still requires a focus on the performance test. The following goals are worth pursuing and achieving:

  • Performance testing that consistently encompasses more of the fundamental lawyering skills that the test was originally designed to encompass, including problem solving and factual analysis.
  • More and consistent use of statutory and regulatory authorities in the law library of performance tests
  • Use of performance testing in all 50 states, not just 46
  • At least two performance test items in all jurisdictions
  • Research into the use of multiple-choice questions within a performance test framework, including as a vehicle for testing legal research

[i] See, e.g., Vikram David Amar, What About the Bar Exam After the 2020 Dust Settles?, Verdict, Legal Analysis and Commentary from Justia (Sept 17, 2020), https://verdict.justia.com/2020/09/17/what-about-the-bar-exam-after-the-2020-dust-settles; Jason Solomon, INSIGHT: Saving the Bar Exam By Focusing on Performance, United States Law Week (July 16, 2020), https://news.bloomberglaw.com/us-law-week/insight-saving-the-bar-exam-by-focusing-on-performance.

[ii] Several thoughtful pieces touching on racial inequities caused by the bar exam appear in volume 3, Issue 4 of AccessLex’s publication, Raising the Bar, 3-12 (Fall 2020), https://www.accesslex.org/resources/raising-the-bar-fall-2020.

[iii] Amar, supra Note i; Solomon, supra Note i. 

[iv] Nat’l Conf. of Bar Exam’rs, Your Voice: Stakeholder Thoughts About the Bar Exam, Phase One Report of the Testing Task Force, 1 (Aug. 2019), https://testingtaskforce.org/wp-content/uploads/2020/03/FINAL-Listening-Session-Executive-Summary-with-Appendices-2.pdf.

[v] Id. at 3. 

[vi] See Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, Nat’l Conf. of Bar Exam’rs (Aug 18, 2020), https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F196.

[vii] The NCBE is notorious for approaching change very cautiously and incrementally. In 2012, the then President of the NCBE invoked geological metaphors to describe how bar exams evolve, writing that any evolution of the exam will be “more glacial than volcanic.” Erica Moeser, President’s Page, B. Examiner, Dec. 2012 at 4, 4.

[viii] MPT Skills Tested, Nat’l Conf. of Bar Exam’rs https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F54 (last visited Oct. 20, 2020) (citing Am. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, Legal Educ. and Prof. Dev. – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138-41 (1992) [MacCrate Report]).

[ix] Judith Gunderson, Happy Birthday, MPT!, B. Examiner, Nov. 2007, at 18. See also MPT Skills Testedsupra Note viii.

[x] Id. at 20. 

[xi] Multistate Performance Test: Jurisdictions Administering the MPT, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/ (last visited Oct. 20, 2020).

[xii] Adoption of the Uniform Bar Examination, with NCBE Tests Administered by Non-UBE Jurisdictions, supra Note vi.

[xiii] Pa. Bd. of Law Exam’rs, Bar Examinationhttps://www.pabarexam.org/bar_exam_information/bebasics.htm (last visited Oct. 20, 2020).

[xiv] The State Bar of Cal., Examinations, California Bar Examinationhttp://www.calbar.ca.gov/Admissions/Examinations (last visited Oct. 20, 2020).

[xv] Multistate Performance Test: Jurisdictions Administering the MPTsupra Note xi.

[xvi] Ben Bratman, Improving the Performance of the Performance Test: The Key to Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565, 584-97 (2015).

[xvii] 2019 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F233 (last visited Oct. 20, 2020).

[xviii] MPT Skills Testedsupra Note viii.

[xix] See Free Summaries of MPTs from Recent Administrations Free MPTs and Point Sheets from Older Administrations, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/exams/mpt/preparing/ (last visited Oct. 20, 2020).

[xx] 2015 MPT Summaries, Nat’l Conf. of Bar Exam’rs, https://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F175 (last visited Oct. 20, 2020).

[xxi] The State Bar of Cal., Past Exams, Performance Tests and Selected Answershttps://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Examination/Past-Exams (last visited Oct. 20, 2020).

[xxii] See, e.g., Pa. Bd. of Law Exam’rs, July 2019 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 59-61, https://www.pabarexam.org/pdf/qa/qa719.pdf (last visited Oct. 20, 2020).

[xxiii] See, e.g., Pa. Bd. of Law Exam’rs, February 2020 Pennsylvania Bar Examination, Essay Questions and Examiners’ Analyses and Performance Test, 62-70, https://www.pabarexam.org/pdf/qa/qa220.pdf (last visited Oct. 20, 2020).

[xxiv] Nat’l Conf. of Bar Exam’rs, Comprehensive Guide to Bar Admission Requirements 36-37 (2020), available at https://www.ncbex.org/assets/BarAdmissionGuide/CompGuide2020_021820_Online_Final.pdf.

[xxv] Bratman, supra Note xvi, at 605-10.

[xxvi] Id. at 608.

[xxvii] Solomon, supra Note i.

[xxviii] If and how to test legal research on the bar exam has been on the NCBE’s radar screen since at least 2006. See Erica Moeser, President’s Page, B. Examiner, May 2006, at 4, 5.

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