The New Bar Exam: Out With the Old or More of the Same? Perhaps Some of Both.

The National Conference of Bar Examiners’ “Testing Task Force” is out with its preliminary recommendations for the “Next Generation of the Bar Exam.” 

What’s the Same: Timing and Number of Exams

A lot of it is “same old, same old.” For example, the Task Force recommends sticking with a single bar exam rather than multiple assessments at various points in a student’s law school career. The latter approach is one familiar to medical education, where MD and DO students take exams at three separate points in their careers: after their second year, after their fourth year, and a year into their residencies. In addition, the bar exam will continue to be given only twice a year. I disagree with both decisions. I would rather see students tested on foundational subjects after the first year and given time to retake the exam if needed while still in school. Offering the test more often would also benefit students who do not do well on standardized tests and need to retake one or more portions. The report counters, “The Task Force concluded that the use of an integrated exam with an increased emphasis on assessing skills and more limited depth and breadth of coverage of doctrine addresses the underlying reasons some stakeholders favored multi-event testing.” This is not an unreasonable position, but it remains to be seen how integrated the new exam actually is. If there is still a clear demarcation between doctrine and skills, I would prefer two exams that can be taken independently. The report does not explain why the Task Force is recommending keeping only two administrations, but I imagine it is because of the practicality in developing and scoring multiple sets of questions on an ongoing basis.

Format Changes

Changes that are proposed in the report are significant. For example, the bar exam of the future will be administered all on computer, but the report notes the importance of accounting for takers who require accommodations. In addition, the report proposes a mix of more styles of questions beyond multiple choice, essays, and performance tests (e.g., selected-response, short-answer, and extended constructed-response items). A question “set” might propose one set of facts that are then tested with various kinds of questions that follow. This will make the authorship of questions easier.

Integrating Doctrine and Skills: A Significant Change in Attorney Licensing

In terms of content, the biggest change is that the exam would more clearly test both “doctrine” and “skills.” Doctrine—what the Task Force calls the “Foundational Concepts and Principles”—would be divided between eight subjects (Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law/Procedure, and Property), a significant reduction from the current number tested on the Uniform Bar Exam. If other subjects are tested (e.g., Family Law), the law would be provided to students.

The second set of outcomes are skills based (“Foundational Skills”). This is where it gets interesting. The Testing Task Force proposes to test on legal research, legal writing, issue spotting/analysis, investigation, client counseling, negotiation, and client relationship/management. “Foundational Skills” could be tested in the context of the “Foundational Concepts and Principles,” and vice versa. Moreover, the “new” bar exam might assess skills in “uniform text- or video-based scenarios that require candidates to construct a written response or select the correct response.”

The Task Force envisions that it would take 4-5 years to develop this new type of exam and provide appropriate notice to law schools and law students. The NCBE may be underestimating the notice and lead-up time that is required. For a small number of schools, the bar exam is an afterthought. For most schools, however, the bar exam drives at least some curricular decisions. It is a fact of life (and law school administration) that if the bar exam changes, law schools and their students will respond in some fashion. As an example, look at what happened when states have moved to the UBE. Law schools stopped offering as many as state-specific courses, and fewer students took the electives that remained. In some states, the change to the UBE was done abruptly (unfairly, in my view) without sufficient time for 2Ls and 3Ls to take different courses. I am glad the Task Force recognizes the importance of notice. However, the change in focus from doctrine to a blend of doctrine and skills may require a substantial reconfiguration of the modern, American law school, so that all of the skills tested on the bar exam can be taught and assessed properly. Among other things, the change may force schools to re-think their faculty hiring practices, bringing in fewer JD/PhD’s who focus on theory and scholarship and more practicing attorneys who teach hands-on skills. Courses and degree sequences might need to be designed so that all of the skills tested on the bar exam are taught and assessed. Some schools may have the luxury of ignoring the bar exam, but I suspect many schools will wish to track (at least partly) what is tested on the bar exam. Whether that means courses in investigation and client management will become required for all students remains to be seen. I suspect, though, that schools will not want to risk causing licensure problems for their students and will try to adapt as much as possible to the new outcomes.

The bar exam is as much a test of competency as a signaling device about what is and is not important. As someone who comes from the “skills side” of legal education (I was a legal writing professor and clinician before joining Charleston School of Law), I am thrilled to see more of a focus on the exam on the actual skills that law graduates will need in practice. But rest assured that a shift in focus on the bar exam will have significant ripple effects as law schools adapt their required, core, and elective curricula to prepare students for this important, high stakes exam, especially given how ABA Standard 316 looms over our heads.

But Will the State Supreme Courts Follow NCBE’s Lead?

All of this is very interesting, but it remains to be seen whether the NCBE will actually implement these recommendations and, more importantly, whether the state supreme courts will utilize such a “new” bar exam. At this point, this is a preliminary set of recommendations, although the fact that the Task Force is made up of such influential members in the bar exam world, including Judith Gundersen, makes it likely that the full NCBE will proceed with adopting the report in some fashion. But I would not underestimate the resistance that the NCBE is likely to encounter from state supreme courts, which have the ultimate licensing authority over attorneys. Some courts are likely to prefer a focus on doctrine, since it is the type of exam that they were licensed under as attorneys. On the other hand, there have been complaints from the bench for years that new lawyers did not have the requisite skills to practice law, so perhaps courts may be more receptive to this kind of blended exam.

The other sector that will need to change if this “new” bar exam goes through is the bar preparation field. Teaching doctrine to hundreds or thousands of law graduates at a time is relatively easy since materials (especially video lectures) can be scaled up. Teaching, assessing, and giving feedback on interpersonal lawyering skills (e.g., negotiation) is another matter.

On balance, I am excited for the conversation to be kicked off with this report. I look forward to seeing what various constituent groups—especially the courts—do with the recommendations and proposals.

Personal News

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The blog has been on the quiet side — something I hope to change in 2021 — in large part because I moved schools in June. After 12 years as a faculty member at St. John’s, I am now the Dean of Charleston School of Law. Becoming a dean in the middle of a pandemic has been a fun whirlwind but has left little time for writing. Nevertheless, having survived my first semester, I plan to post here more often.

As a bit of background, Charleston School of Law is a young, independent law school. One of only two law schools in South Carolina, CSOL was founded in 2004 with a mission of “pro bono populi” – for the good of the people. Since then, our graduates have donated over a half million hours of pro bono work to the local legal community. While the Law School has had challenges (some common to legal education, some unique), we are very much on the upswing. For instance, our Fall 2020 class was our highest credentialed class since 2012. I hope to be able to share lots of good news about the Law School in 2021. In the meantime, I’ll have a few assessment-related posts coming up.