What About the Bar Exam?

November 25th, 2013 / By Deborah J. Merritt

This post continues my earlier discussion of an educational framework that would shift the first 1-1/2 years of law school to the undergraduate curriculum. A two-year JD program, incorporating clinical education and advanced doctrinal work, would complement the undergraduate degree. As I wrote in my previous post, the undergraduate degree would not qualify students to practice law; as in our current system, only JDs would be eligible for bar admission.

In this framework, what would happen to the bar exam? The bar currently focuses on subjects covered during the first half of law school. If students completed that work in college, delaying the exam until after completion of a JD would be unsatisfactory. What’s the answer?

I can see several ways to address this issue, and I welcome suggestions from others. But here’s the answer that currently appeals to me: Divide the bar exam into two portions. The first portion would replace the LSAT as an entrance exam for JD programs. Rather than demonstrate their proficiency in logic games, future lawyers would show their competency in legal reasoning and basic legal doctrine. The second part of the exam, administered to JD’s, would focus on more advanced problem solving, counseling, and other practice skills. Both parts of the exam would include appropriate testing on professional responsibility.

A New Entry Exam

Law schools use the LSAT as an entry exam because we don’t have much else to rely upon. College grades offer one measure of potential success, but grading systems (and grade inflation) vary across colleges. Law schools set no prerequisites, so we can’t measure applicants’ success at mastering those fields. In theory, we could review applicants’ research and writing skills directly, but no one has much appetite for that. (And what would US News do to sell subscriptions if we abandoned a quantifiable admissions test?)

The MCAT, which informs medical school admissions, is quite different from the LSAT. The exam includes a section that probes reading comprehension and general reasoning, but two-thirds of the exam “tests for mastery of basic concepts in biology, general chemistry, organic chemistry, and physics.”

If students completed the first 1-1/2 years of legal study in college, we could devise a JD entrance exam that looked more like the MCAT. This exam would draw upon the current Multistate Bar Exam (MBE), Multistate Performance Test (MPT), and Multistate Professional Responsibility Exam (MPRE). A slimmed-down MBE would test basic knowledge and reasoning in foundational fields like Torts, Criminal Law, Property, and Constitutional Law. The MPT would examine analysis, reasoning, and writing as applied to basic legal issues. And an adapted version of the MPRE would cover basic principles of professional responsibility.

This type of exam would assure JD programs that applicants had mastered key principles during their undergraduate study. The exam would also demonstrate that proficiency to licensing bodies. Equally important, the exam could replace our obsession with LSAT scores. If we’re not willing to give up quantitative rankings and merit-based scholarships, we could at least reward new JD students for studying hard in college and mastering basic legal subjects.

Teaching to the Test

Would this new entrance exam require professors of undergraduate law courses to teach to the test? Would an undergraduate version of Property, for example, stress memorization rather than exploration of analysis and policy? That hasn’t happened in college science courses, despite the foreboding presence of the MCAT. Science professors, like law professors, realize that students can’t learn basic principles without also understanding how to apply them.

Undergraduate law courses, like our current 1L ones, would teach students basic doctrinal elements. They would also teach students how to apply those principles and reason with them. Students probably would reinforce their learning by taking review courses, just as they currently take LSAT prep courses and MCAT review ones. I’d rather see aspiring JD students pay for courses that review essential professional material than shell out money to learn tricks for beating the LSAT.

The entrance exam I envision, furthermore, would stress more basic principles than the current MBE. Currently, the MBE and MPT require 1-1/2 days of testing; the MPRE adds another 2 hours. I would create an entrance exam consuming six hours at most. The exam could cover all of the subjects currently included on the MBE (including Civil Procedure, scheduled to debut in February 2015), but coverage within each subject would be more limited. I would test only fundamental principles that students need to know by heart, not details that a reasonable lawyer would research. Similarly, I would include only some MPRE material on this exam, deferring other material to the post-JD test.

Post-JD Testing

So far I’ve proposed that aspiring lawyers would (a) complete a college major in law, encompassing the material we currently cover in the first 1-1/2 years of law school; (b) pass a modified version of the MBE-MPT-MPRE to enter law school; and (c) complete a 2-year JD program. Before gaining bar admission, these individuals would leap two more hurdles: They would (d) establish their good character, much as bar applicants do today, and (e) demonstrate their proficiency in legal analysis, reasoning, professional responsibility, and lawyering skills.

JD students would study some advanced doctrinal subjects in the 2-year program I envision, but I would not test those subjects for bar admission. Licensing focuses on minimum competency; we don’t test advanced doctrinal areas today, and we don’t need to add that testing to my proposed framework.

Instead, measures of post-JD proficiency could focus on legal analysis, reasoning, and professional responsibility–along with a healthy dose of lawyering skills. Adding a half year to legal study, as my four-plus-two program does, would allow better preparation in practice skills.

Licensing authorities could test those skills in one of two ways, or through a combination of the two. First, they could create their own tests of mastery. A written exam might include more sophisticated versions of the files used for the MPT. State supreme courts could also require students to complete live tests of client counseling, negotiation, and other skills. The medical profession has started using simulations to test graduates on their clinical skills; Step 2 CS of the licensing exam assesses performance through twelve simulated patient encounters. The legal profession could develop similar tests.

Alternatively, state supreme courts could require bar applicants to complete designated courses in these lawyering skills. Students would qualify for bar admission by successfully completing the required courses during their JD program. Courts and bar associations could assure quality in these courses by visiting and certifying them every few years.

Conclusion

It would be relatively easy to adapt the bar examination to a four-plus-two framework for legal education. Adaptation, in fact, could improve our licensing system by forcing us to reflect on the knowledge and skills that demonstrate basic competence in the legal profession. Step one of the bar, tested after college, would focus on basic legal doctrines, legal reasoning, analysis, and professional responsibility. Step two, assessed during or after the JD program, would further assess analytic skills while also examining key competencies for client representation.