Saturday, May 6, 2017

Our Broken Bar Exam by Deborah Jones Merritt

The bar exam, the last hurdle before an individual becomes a member of the legal profession, is greatly outdated.  It is a test for the 1950s.  Deborah Jones Merritt has written an article, which shows how the bar exam can be fixed.

Validity, Competence, and the Bar Exam.

"The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary."

"This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence. The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact."

"In the language of psychometricians, our bar exam lacks 'validity.' We haven’t shown that the exam measures the quality (minimal competence to practice law) that we want to measure. On the contrary, growing evidence suggests that our exam is invalid: the knowledge and skills tested by the exam vary too greatly from the ones clients require from their lawyers."

"The bar exam defines the baseline of our profession. If the exam tests the wrong things, we have a professional obligation to change it."

"NCBE’s job analysis, however, also reveals important gaps in our measure of minimum competence. New lawyers reported that knowledge of research methods was more important than knowledge of most subjects tested on the bar. Similarly, they stressed the importance of fact gathering, negotiating, and interviewing; more than 85 percent of new lawyers used each of these cognitive skills."
"These competencies matter to clients. A lawyer who doesn’t know suitable research methods won’t find the regulations, legislative history, and data that will help her client. One who lacks knowledge of negotiation principles won’t get the best outcome for his client. Unskilled negotiators cost their clients money, business opportunities, family relationships, and even days in jail."

"A recent study by the Institute for the Advancement of the American Legal System (IAALS) illustrates how many new lawyers lack essential practice skills."

"Why doesn’t our definition of minimum competence include cognitive skills that are essential for effective client representation?"

"The primary reason we don’t test bar candidates on these skills is that law schools don’t stress them."

"The IAALS study, like many others, confirms that law schools can teach these cognitive skills to students."

"At the same time that the bar exam tests too little of the competencies new lawyers need, it requires too much memorization."

"I propose creation of a National Task Force on the Bar Exam. This group would study current approaches to the bar exam, develop a more realistic definition of minimum competence, and explore best practices for measuring that competence. AALS, the Conference of Chief Justices, ABA Section of Legal Education and Admissions to the Bar, and NCBE could jointly sponsor the task force."

"Some legal educators have raised concerns about the bar exam because an increasing number of their students are failing. I am not part of that group. Law schools have an obligation to prepare students to satisfy our profession’s definition of minimum competence. We cannot change that definition simply because graduates find it harder to meet."

"Most important, we must develop a definition of minimum competence that tracks the real work of new lawyers."

I have argued for several years that the bar exam should be changed to test for what lawyers actually do in practice.  (here, here, here)  Professor Merritt's article is an excellent example of what the bar exam can be.  As she points out, the bar exam sets out minimum competencies for the legal profession.  If the bar exam changed, so would legal education.

(Scott Fruehwald)

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