Friday, August 16, 2019

The Future Of The Bar Exam By Kyle McEntee

That has been a lot written on changing the bar exam recently.  As I stated several years ago, the bar exam should reflect what lawyers do in practice.

The Future Of The Bar Exam By Kyle McEntee.

"The next generation of the bar exam is coming. Well, hopefully.

The National Conference of Bar Examiners (NCBE) released its Testing Task Force’s Phase 1 report this week. The report summarizes what people throughout the legal profession think about the current licensing process and exam. While readers will not be surprised by the general sentiments — people are generally dissatisfied with the current bar exam — they may be surprised that the NCBE published such forceful critiques."

"Phase I involved listening sessions with lawyers, judges, examiners, and educators. Phase II involves a practice analysis to “gather current, empirical data on the knowledge, skills, abilities, other characteristics, and technologies that newly licensed lawyers use to accomplish the job tasks they perform.” Phase III will involve turning the results of Phase I and II into exam design recommendations by the end of 2020."

"The exam tests both too much and too little. That is, it should emphasize more lawyering skills and less subject matter knowledge.

The exam should utilize more writing, less multiple-choice, and additional methods like simulation.

Jurisdictions should consider breaking the exam into different parts over more than just a few days."

Other conclusions:

"“The MEE is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis).”

"The MBE tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to know and are not reflective of minimum competence; the MBE tests too deeply on subjects; memorizing black-letter law for the MBE to answer multiple-choice questions (MCQs) does not mimic real practice because lawyers would look up the law and not rely only on memory in representing clients; too much focus on memorization; the MBE tests only memorization and no skills; the MBE questions are full of red herrings and intentionally tricky.”

“MCQs are not realistic or an effective way to test what lawyers do; if retaining MCQs for the MBE, reduce the number of questions or increase the amount of time allowed.”

"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."

(Scott Fruehwald)

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