Best Practices for Legal Education

The Testing Task Force of the National Conference of Bar Examiners (NCBE) recently completed the three phases of its “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.” Earlier this month, as tumultuous events in Washington, D.C. grabbed most of the headlines, the task force quietly released an Overview of Preliminary Recommendations for the Next Generation of the Bar Exam. The recommendations are a big deal—possibly a game changer—and deserve some discussion.

I see three positive aspects of the task force’s preliminary recommendations:

First, quoting the document directly, “Our decisions were guided by the prevailing views expressed by stakeholders . . . : that the bar exam should test fewer subjects and should test less broadly and deeply within the subjects covered, [and] that greater emphasis should be placed on assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform . . . .” So many critics of the current bar exam, myself included, have argued exactly these positions for so long, but to read them coming from the task force directly affiliated with the NCBE is no small matter.

Indeed, the task force recommends a significant reduction in the number of legal subjects to be tested—just Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law, Criminal Procedure (limited to constitutional protections), and Real Property. These reductions, if they were adopted, would cut from the current Multistate Essay Examination (MEE) subjects, not the Multistate Bar Exam (MBE) ones. Many will understandably quibble with the retention of all seven MBE subjects, and indeed I will do just that below. Still, one can hope that, if the task force’s recommendations are adopted by the NCBE, the bar exam of the future will in fact cover the several MBE subjects “less broadly and deeply” than the extent to which they are currently tested.

One reason to be hopeful that the next generation of the bar exam would in fact test MBE subjects less broadly and less deeply is that the task force is recommending a fundamental shift away from the model of discrete exams like the MBE, MEE, and Multistate Performance Test (MPT). It is instead calling for an integrated exam that would test “knowledge and skills holistically, using both stand-alone questions and item sets, as well as a combination of item formats (e.g., selected-response, short-answer, and extended constructed-response items).” As always, the devil will be in the details, but this preliminary recommendation sounds at least somewhat promising.

Second, the task force rightly recognizes the need to expand the scope of the foundational skills covered on the bar exam to include more than just legal analysis and writing. Among the skills to be encompassed by the projected bar exam of the future are legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution. It might be hard to imagine how some of these skill sets could be tested, but the task force foresees “uniform text- or video-based scenarios that require candidates to construct a written response or select the correct response.”

Third, the task force recommends that the next generation of the exam should be “a computer-based test, administered either on candidates’ laptops in jurisdiction-managed facilities and/or at computer testing centers managed by a suitable vendor.” The pandemic forced many state bar examiners to abruptly adopt computer-based testing. It makes sense for myriad reasons to move in the direction of computer-based testing and to do so as part of a deliberate and careful process.

Having said all that, there are at least two aspects of the task force’s recommendation that strike me as problematic—or at least present the risk of inadequate or counterproductive reform to the bar exam.

First, as mentioned earlier, there is the question of why the bar exam should continue to test legal knowledge in all seven of the MBE subject areas. Testing knowledge of such a large number of subject areas is especially problematic when considering that, by all appearances, the exam would remain closed-book. As Professor Deborah Merritt has cogently explained here, if the bar exam of the future needs to remain a closed-book exam, then the doctrinal portion of the exam should cover no more than a basic understanding of U.S. legal processes and sources of law or a single substantive subject. In arguing for an open-book exam, Merritt correctly points out that “new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem.”

Moreover, the empirical data on job activities of newly licensed lawyers, gathered during Phase 2 of the task force’s study, reveals that both experienced and newly licensed lawyers rated knowledge of Torts, Constitutional Law, Criminal Law, Criminal Procedure, and Real Property Law as only moderately important (all receiving an average rating of 2.2 or lower out of 3). They rated knowledge of all those subject areas as less important than knowledge of Statutory Interpretation Principles or Statutes of Limitations (both receiving an average rating of 2.3), neither of which is included as a stand-alone subject to be tested on the task force’s vision of the bar exam. To be sure, Civil Procedure (2.6), Contract Law (2.6), and Rules of Evidence (2.5) all received noticeably higher average ratings. Perhaps one or more of only those subject areas could be tested.

Second, on a more micro level, is the peculiar fate of one specific knowledge area: Statutory Interpretation Principles. In phase 3 of the study, the task force proposed that Statutory Interpretation Principles should not be tested as a stand-alone subject but rather could be subsumed under the Constitutional Law subject area and the skills portion of the exam. The suggestion that statutory interpretation can be subsumed under Constitutional Law is a dubious one. Rarely does a court do a deep textual dive into the precise phrasing of a constitutional provision as courts routinely do when confronted with a question of statutory construction. Moreover, questions on substantive knowledge of constitutional law will routinely call on knowledge of Supreme Court precedents, not on dissection of the text of a constitutional provision.

Statutory interpretation is plainly distinct from constitutional interpretation in critical ways. Hence, I trust that the skills components of the bar exam of the future will include not just cases as sources of law, but also statutory and regulatory provisions (cutting across many different substantive subject areas) which applicants have to dissect and interpret. Based on what I’ve heard from the task force, I am optimistic on this point. I discussed the extent to which statutory sources are used on the performance test, currently the only exclusively skills component of the bar exam, in an earlier post here.

In sum, much is uncertain and will take shape over time. But the early indications give some reason to be cautiously optimistic about the NCBE testing task force’s vision of a new bar exam.

Filed under: Bar Exam, Uncategorized | Tagged: bar exam |