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.

New Article on the UBE

Professor and Director of Academic Support and Bar Passage Marsha Griggs (Washburn) has a new article on SSRN, Building a Better Bar Exam.  It is a well-written critique of the Uniform Bar Exam.  From the SSRN summary:

In the wake of declining bar passage rates and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, 36 U.S. jurisdictions have adopted the UBE. I predict that in a few years the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is what can be done to make sure that the UBE does less harm than good?

This paper will, in four parts, examine the meteoric rise and spread of the UBE and the potential costs of its quick adoption. Part one will survey the gradual move away from state law exams to the jurisdictionally neutral UBE. Part two will identify correlations between recent changes to the multistate exams and a stark national decline in bar passage rates. Part three will address the limitations of the UBE, including the misleading promise of score portability and the consequences of forum shopping. Part four will propose additional measures that can coexist with the UBE to counterbalance its limitations to make a better bar exam for our students and the clients they will serve.

The UBE, while well-intentioned, has had unintended consequences.  In the Empire State, the New York State Bar Association—a voluntary membership organization, not a licensing or regulatory entity—is studying the impact of our state’s move to the UBE a few years ago.  As Patricia Salkin (Provost, Graduate and Professional Divisions, Touro) and I wrote about in the New York Law Journal, there was a precipitous decline in New York Practice enrollment statewide after New York’s “unique” civil procedure code, the Civil Practice Law and Rules, was no longer tested on the bar exam.  Students voted with their feet and flocked to other courses.  The NYSBA Task Force will attempt to assess whether there has been a decrease in lawyer competency following the adoption of the UBE.

In the meantime, Professor Griggs’ article makes a nice addition to the conversation around various aspects of the UBE.

 

Collecting Ultimate Bar Passage Data: Weighing the Costs and Benefits

The bar exam is an important outcome measure of whether our graduates are learning the basic competencies expected of new lawyers. As the ABA Managing Director reminded us in his memo of June 2015, however, it can no longer be the principal measure of student learning. Thus, we’re directed to look for other evidence of learning in our programs of legal education, hence the new focus on programmatic assessment.

Nevertheless, the ABA has wisely retained a minimal bar passage requirement in Standard 316, described in greater detail here. It is an important metric for prospective students. It is also an indicator of the quality of a school’s admission standards and, indirectly, its academic program. Indeed, it has been the subject of much debate recently. A proposal would have simplified the rule by requiring law schools to demonstrate that 75% of their graduates had passed a bar exam within two years of graduation. For a variety of reasons, the Council of the Section of Legal Education and Admission to the Bar recently decided to postpone moving forward with this change and leave Standard 316 written as-is.

With that background, Friday afternoon the ABA Associate Deans’ listserv received a message from William Adams, Deputy Managing Director of the ABA.  In it, he described a new process for collecting data on bar passage. A copy of the memo is on the ABA website. This change was authorized at the June 2017 meeting of the Council.  Readers may remember that the June meeting was the one that led to a major dust-up in legal education, when it was later revealed that the Council had voted to make substantial (and some would say, detrimental) changes to the Employment Questionnaire. When this came to light through the work of Jerry Organ and others, the ABA wisely backed off this proposed change and indicated it would further study the issue.

The change that the ABA approved in June and announced in greater detail on Friday is equally problematic.   Continue reading

The Bar Exam and Assessment

Recently, the Standards Review Committee of the ABA announced that it will be proposing a change to ABA Standard 316, which governs the minimum bar exam passage rate that a law school must show in order to remain accredited. As has been reported elsewhere, the current rule provides law schools with a number of ways to demonstrate compliance.  The proposed rule streamlines the path to compliance.  Under the proposal, 75% of a school’s graduates who took a bar exam must pass within two years of graduation.  First-time bar passage will still be reported on a school’s Standard 509 report.

It is important to put this proposal into a broader context:

  • A declining applicant pool has led some schools to lower admissions standards.
  • Critics have argued that some law schools are admitting students who have little to no hope of passing the bar exam, at least not on the first attempt.
  • There has been public bickering between some deans and the National Conference of Bar Examiners about who is to blame for recent declines in bar passage nationwide, with the former blaming the test, and the latter blaming law schools for lowering admissions standards.

I argue that, along the way, there has been a silent rethinking of how we view the bar exam. Many schools take great pride in their bar passage rates, as they reflect well on their programs of legal education.  In the past, a school’s bar exam passage rate was thought to be the measure of knowledge acquired in law school.  But there are a few reasons why the bar exam does not fully assess the learning that goes on in law school: Continue reading