Each spring, thousands of law students graduate from law schools across the country, celebrate for a few days, and then almost unanimously enroll in and attend full-time test prep courses by companies like Kaplan. Countless hours and millions of dollars later, these same students take their respective bar exams where many will pass, and the ones who don’t will retake the exam in order to pass and begin their careers in the legal field.
But if passing the bar exam is all but guaranteed for those who can afford to prepare and take the test as many times as they like, is the bar exam even worth it? Does it actually test what it purports to? And is it a valuable measure of legal knowledge after several years of legal study?
Questions like these have led an increasing number of people to wonder aloud whether or not the bar exam is a relic of the past that is best left behind.
For those who still believe in the bar exam, many are nonetheless questioning if it’s living up to intended effects. Could the lawyers of tomorrow be facing a significantly different bar exam than many of the colleagues who passed through the rite before them? If the results of the first phase of a study by the National Conference on Bar Examiners (NCBE) Testing Task Force are any indication, they might be. And, in fact, the bar exam itself may be on the chopping block if some get their way.
Analyzing the bar exam’s effectiveness
The NCBE is a nonprofit organization that produces several of the tests that law students may have to pass in order to become licensed attorneys in their respective states. Those tests include the Multistate Bar Examination (MBE), Multistate Essay Examination (MEE), Multistate Performance Test (MPT), and Multistate Professional Responsibility Examination (MPRE). Each jurisdiction in the United States has its own licensure requirements, but these tests combine to make up a large percentage of the requirements in the country.
In 2019, the NCBE began a three-part study to ensure that the bar exam is accomplishing its objective of ensuring that licensed attorneys have the knowledge and skills necessary to represent their clients. In effect, the study implicitly asked the question every graduating law student wonders each year: why do we have to take the bar exam?
In Phase I, over 400 participants–including examiners, lawyers, judges, and law school faculty–engaged in “listening sessions” where they were asked to provide their feedback on the bar exam.
Phase II was a “national practice analysis to provide empirical data on the job activities of newly licensed lawyers.” Newly licensed lawyers (NLLs) were defined as those who had been licensed for three years or less. Both NLLs and lawyers who had been licensed for longer than three years were asked to participate in a survey articulating what tasks were frequently performed by NLLs, and what knowledge and skills those tasks required.
Phase III, scheduled for completion by the end of 2020, will combine the results of the earlier phases and create updated recommendations for future bar exams.
If everyone passes the bar exam, what’s the point?
With few exceptions—such as in California where barely 29% of first-time takers pass the bar—most people who attempt to pass the bar exam do so. Some numbers place the passage rate as high as 90% of those who try to pass the test do so.
There have been a number of empirical studies to back up these assertions, such as Jane Bambauer’s 2009 article that has made the rounds in many circles.
In Bambauer’s study, she draws attention to who is able to pass the bar on the first attempt, and who isn’t. While her data ultimately focuses on the demographics and cultural differences in test-takers, her overall point remains valid: if anyone who can afford to enroll in expensive prep classes and forego months’ of lost time at a job, can pass the bar, then isn’t it testing students’ economic standing more than their academic abilities?
Alternative approaches to the bar exam
The result of conversations related to data like Bambauer’s is an ongoing debate of why we need the bar exam, and how it could look different. Some have called for it to be rolled into the final semester of law school, so that the law degree itself can take on more authority and utility. Still others have called for the exam to be dropped altogether.
We won’t know the final results of the aforementioned NCBE study until later in 2020. The concerns and suggestions included in the NCBE’s Testing Task Force Executive Summary for Phase I can give us an idea of what changes might be proposed, putting us in a better position to focus on what (if any) alternatives are needed. Some of preliminary feedback has included:
- Less testing on rules (which the modern attorney will often look up during practice rather than relying on memory) and more emphasis on “lawyering skills”: the critical thinking, analysis, and communication skills necessary to the legal profession.
- Spreading out the testing process, rather than maintaining it as a multi-day event. One suggestion of how this could work included holding the MBE (which is more knowledge-based) while test takers are still in the school, and reworking the MPT to be held post-graduation as a more skill-based exam.
- Consideration of a universal passing score for the Univeral Bar Exam (UBE), which is a combination of the MEE, MPT, and MBE culminating in a score that can be transferred between UBE jurisdictions. Currently, jurisdictions set their own passing scores- meaning that someone can pass in one jurisdiction, but not another.
Implementation of any of these changes would result in a very different testing experience for future attorneys, and could potentially increase pass rates. To quote Above the Law’s article, The Future of the Bar Exam, “The only fair reason to limit licensure to those who pass the bar is to protect the public. If the bar exam does not measure minimum competence, it needs to change or be eliminated. Fortunately the NCBE seems poised to oversee that change in the near future.”
Potential changes to the bar exam are one of many variables facing today’s future lawyers. With online classes, remote or canceled internships, and an economy shaken by COVID-19, the future is hard to predict, but we at Smokeball look forward to innovating along with the legal profession every step of the way.