Tuesday, December 1, 2020
Deborah Jones Merritt has posted an excellent article on the bar exam on the Best Practices for Legal Education Blog: Could We Create a New Bar Exam?.
Here’s just one modest proposal that would significantly improve the validity of the bar exam:
- Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
- Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
- Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
- Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.