By Karen Sloan for Law.com
Bar exam watchers say a preliminary plan to reform the attorney licensing test to focus more on lawyering skills and less on the memorization of laws is a step in the right direction—but they warn that the planned changes may not go far enough to address what ails the current exam and will take years to implement.
Bar exam reformers and bar prep providers have spent the past week digesting a series of proposed changes that were unveiled Jan. 4 by the National Conference of Bar Examiners’ Testing Task Force, which has spent the past three years studying the exam and weighing new approaches. The proposal calls for the elimination of the three distinct test sections—the Multistate Bar Exam, the Multistate Essay Exam and the Multistate Performance Test—in favor of an integrated exam that more closely resembles the existing performance test portion.
“I am thrilled that there are plans to launch a bar exam that would test the actual skills and knowledge that every new attorney needs,” said Marsha Griggs, director of academic support and bar passage at Washburn University School of Law. “Emphasizing more performance tasks is the right direction. An overhaul of the bar exam is long overdue.”
But the plans for an updated bar exam further highlight the shortcomings of the current exam, which law graduates will still have to take for the four or five years the National Conference has said it will need to develop and roll out the new test, Griggs added.
Joan Howarth, a professor at William S. Boyd School of Law at the University of Nevada, Las Vegas who has been studying the bar exam for more than two decades, said the National Conference should implement some of the recommended changes immediately while it completes the more laborious work of retooling the format of the bar exam. For example, it could quickly eliminate the testing of more obscure legal rules and add more performance tests—which require examinees to prepare a legal document based on a provided scenario.
“Making the new test a dream come true instead of a nightmare will require every minute of the four or five years of lead time that the [National Conference] predicts,” Howarth said.
In addition to folding the entire bar exam into a single format, the Testing Task Force recommendations call for:
- Eliminating several tested subject areas. Civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law and real property would continue to be tested. But family law, estates and trusts, the Universal Commercial Code and conflict of laws would be dropped.
- Testing several new legal skill areas, including investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management.
- Mixing up the types of responses examinees give. For example, a single legal scenario could yield multiple-choice questions, short answer questions and the creation of a legal document.
- The entire bar exam would be administered via computer. Currently, the multiple-choice portion of the exam is paper based.
Here’s what would stay the same under the proposal:
- The bar exam would continue to be given twice a year, once people have completed law school. (A few states allows students to take the bar in their final year of law school.)
- It would still be a two-day test, under which examinees would receive a single score that would determine whether or not they passed.
- The exam would remain closed book, meaning that test takers cannot access their own reference materials. However, the retooled exam would likely incorporate more reference material provided by the National Conference.
Several bar exam preparation providers welcomed the move to a fully computer-based test, which they say could potentially speed up the time it takes to score the exams. But the Testing Task Force may have gone a bit too far in its recommendations for the subjects to be eliminated from the exam, said BarBri president Mike Sims.
“I think the task force struck the right balance with the reduced number of subjects on the foundational concepts and principles list,” Sims said. “However, I would recommend they consider adding wills and estates, as it is an area of law that all will eventually deal with.”
Bar exam tutor Sean Silverman said that even with the elimination of several tested subjects, examinees will still have to memorize a hefty amount of law in advance of the exam.
“The test is still closed book,” he said. “This surprised me. As someone who has taught this exam for a long time, it just strikes me as really obvious that the truly important skills such as legal analysis can be tested even if all the law is provided as part of the exam.”
Silverman said he welcomes testing of additional legal skills on the revamped bar exam, but cautioned that the National Conference will have to find ways to assess those skills in meaningful ways.
“It’s one thing to test these skills and it’s another to test them effectively,” Silverman said. “The [National Conference] claims to intend to test skills such as negotiation, client counseling and client management. Certainly, these are all important skills but it’ll be interesting to see how they intend to assess these types of abilities on a standardized test.”
Ohio State University law professor Deborah Merritt—who co-authored a recent study of the bar exam from the Institute for the Advancement of the American Legal System—said that while she welcomes a shift to a more skills-based test, it remains to be seen whether the National Conference can deliver on that front.
“[The National Conference’s] current exam attempts to test fundamental principles, rather than detailed rules, but many criticize the current exam for sliding too far towards memorization of detail,” Merritt said. “What will prevent that in the next generation exam from taking the same slide?”
One approach test developers could take is to have exam questions drafted by people who are not experts in the legal area being tested. That way, the questions would more accurately gauge broader foundational principles rather than the legal minutia of that particular area. Having clinical law professors draft questions could be another way to avoid and exam that drills too far down into legal details, Merritt said.
But Pilar Escontrías, co-founder of the national group United For Diploma Privilege, said the Testing Task Force and its resulting recommendations sidestepped deeper issues about the equity and fairness of the bar exam.
“In its preliminary recommendations report, the [National Conference] did not seriously grapple with the entrenched racism, ableism, classism or sexism that researchers have identified as endemic to standardized testing broadly, nor did it engage with scholarship that interrogates the validity of the bar exam specifically—of which there is plenty,” she said.