Experiential Education and Bar Passage

January 22nd, 2016 / By Deborah J. Merritt

Robert Kuehn has written an excellent post about clinical courses and bar passage. He notes that Erica Moeser, President of the National Conference of Bar Examiners, suggested in print that declining bar passage rates might stem in part from the rise of experiential learning in law schools. NCBE’s Director of Testing and Research has made the same claim, noting that: “There has also been a trend toward incorporating non-core courses and clinical experiences into the law school curriculum. These, too, can take students’ time away from learning the core concepts that are tested on the bar examination.”

When Kuehn contacted Moeser to ask if she knew about any empirical research supporting this purported connection, she admitted that she knew of none. Nor did her testing staff.

Kuehn, in contrast, assembles the available research in his post. There is very little evidence that taking courses on bar subjects correlates with success on the bar exam. There is evidence–cited by Kuehn–that well designed academic support programs can improve bar passage. Where do clinical, writing, and other experiential courses fall on this spectrum? We don’t know; this is an essential subject for research.

I’d also like to turn this debate around: If completion of law school courses in bar subjects doesn’t improve bar passage rates, then what does that tell us about legal education or the bar exam? Are we teaching our courses in a way that fails to stick with students? Or is there something wrong with the bar exam?

I have taught two bar subjects, Torts and Evidence, many times. In more than thirty years of teaching, almost all students have demonstrated their mastery of the subject on a final exam. But I give open book exams: I think it is silly to require students to memorize the hearsay exceptions when even experienced trial lawyers (and judges) take the rules to court with them. I want my students to understand how to apply those rules, not how to regurgitate them.

The bar exam, in contrast, requires test takers to memorize hundreds of legal principles in at least a dozen subjects. Yes, the exam also tests the ability to apply those principles–but no one gets to apply the principle correctly unless they remember its detailed provisions.

Similarly, if the bar exam doesn’t reward students who take advanced legal writing, clinical, and other experiential education courses, that’s a problem with the bar exam. Lawyers today do not succeed by knowing the law–or by applying legal principles to sterile facts divorced from controversy, client goals, and the skills needed to elucidate those facts. Computers can remember more legal principles than any human, and they are fast improving their ability to apply those principles to uncontested facts. Similarly, non-lawyer employees (like compliance officers, contract managers, and HR specialists) have no trouble knowing and applying legal principles.

Lawyers add value if they understand how to work with uncertain facts, to identify client goals, and to solve problems in a complex environment that includes shifting legal principles, facts, and goals. Memorizing the law and applying those principles to neat hypotheticals are no longer enough. Let’s demand a bar exam that measures what lawyers really do.