The past year has been a stress test for many flawed American institutions, from public health to basic democracy. Perhaps lawyer licensing isn’t important to either of these concerns, but it’s still a critical process for thousands of law graduates, the profession, and the general public. And the only honest takeaway from 2020 is that the entire process failed.
The face-to-face exams brought applicants into close contact with COVID cases, the remote exams made bizarre fraud claims – some solely based on race – and the bar examiners proved unable to bear the burden of “actually responding to technical problems.” Beyond the test, we learned that state officials were openly considering using the character and fitness process to punish anyone willing to criticize the debacle and further expose the profound structural issues in the licensing process.
As critics grew louder, the NCBE – the functional monopoly that controls the bar exam process at the national level – issued weak white papers, strangely irrelevant surveys, and statements dismissing independent, carefully researched studies as fake news. The California bar examiners even hired a public relations firm that specialized in responding to mass shootings to deal with mounting criticism.
But now the same NCBE that had been declaring absolutely nothing needs to be changed all year announced the results of their own three-year study, conducted by their Testing Task Force, which promised big changes that would ease the increasing pressure on the licensing process could … in five years or so.
The new recommendations wouldn’t come into force until 2026 at the earliest, but they at least address the core issues of the audit described last year, right? Mostly wrong.
In defense of the report, the need to transition the exam from an exam based on the encyclopedic mastery of knowledge of general doctrines in a profession that is increasingly focused on specialization, to one that focuses on testing legal skills, is emphasized, recognized correctly. However, explaining a greater emphasis on skills seems to be the scope of the plan. From Law.com:
To this end, the Testing Task Force recommended reducing the number of subject areas tested in the exam. Civil litigation, contract law, evidence, court cases, business associations, constitutional law, criminal law and real estate would continue to be examined. But family law, estates and trusts, the Universal Commercial Code and legal conflicts would be dropped.
That is still a lot of substantive material that, for an M&A attorney, is exactly like crouching down. While the tyranny of spending the summer fearful of a surprise UCC section has come to an end, that cutting back is a modest change at best.
It is still proposed as a two-day personal exam. The latter point may sound good, as COVID should be gone – knocked on wood – by 2026, but a lot of the problems with online exams resulted from trying to knock them down in a few months. It might have been nice to spend five years building an infrastructure that can support a remote exam. However, it will only be on the computer!
The bar exam would continue to be a closed test, which means candidates are not allowed to take notes or consult their own reference material during the exam. However, the revised bar exam would offer more of a “closed universe” of reference materials made available to all test takers than the current exam.
Because nothing tests the research skills required of lawyers more than receiving a package and finding the answers on these 15 pages. I may sound like a broken record, but “the practice of law is an open test.” If the goal is to make sure lawyers have the skills needed to be competent lawyers, give them a problem and let them explore the entire universe to find the answer. A well-constructed question requires the applicant to agree on a core of case law anyway, but the real skill is to find these cases and find out that they are important. It’s not a big test to give them a primer and hope that they will test their ability to quote the correct sentence.
In addition to reducing the number of law subjects tested, the task force has proposed increasing the number of legal skills included in the new bar exam. Legal research and writing remain on this list, as does identifying and analyzing problems. However, they include investigations and evaluations, customer advice, negotiation and dispute resolution, as well as customer relations and management. Questions and tasks related to these areas would be addressed in the different legal scenarios presented to the examinees as part of the Task Force’s recommendations.
Do you know where else you could go to make sure applicants have mastered these skills? Law faculties! The bar exam is a relic of a bygone era when people with no formal education asked for a legal license. But now that almost every jurisdiction requires a law degree – and the exceptions require a different form of “law school”, such as California’s Kardashian option – states could just develop one curriculum that is ideally standardized across borders and has evidence of it Accredited schools of law require candidates for admission to have the competence in “advising and advising customers, negotiating and dispute resolution, and customer relations and management” before they can obtain a degree. A multi-week iterative assessment in a course or practice clinic is more likely to guarantee applicants will understand the material than a one-time snapshot during a 48-hour trial period.
That’s the most frustrating aspect of the bar exam interview – states simply refuse to use their power to self-regulate law schools in favor of a silly, outdated test that isn’t even designed to test the minimum proficiency level. Given the academic recognition that skills are more important in ensuring competency and protecting the public, bar examiners respond, “I’m sure we can improve our tests,” rather than figuring out how to ensure candidates actually demonstrate those skills. And the problem is, it is better for examiners to keep feeding the typewriter for bar exams, and it is easier for law schools to keep collecting tuition than having to tell someone to stop running into debt because he cannot acquire a license. It doesn’t have to be like that, everyone.
Instead, we will get a new test in 2026. And life will go on just as it did before. Hit the new test … like the old test, but with fewer number 2 pencils. Jesus, how did Ticonderoga come to be the only legitimate interest in this deal?
Bar exam overhaul plans will be released. So long, MBE [Law.com]
Earlier: What would be better than the bar exam?
NCBE rejects 114-page academic report as “fake news”
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter if you’re into law, politics, and a healthy dose of college sports news. Joe is also the managing director of RPN Executive Search.