Lay Down the Law

November 3rd, 2023 / By Deborah J. Merritt

In my last post, I discussed a sample bar exam question that requires knowledge of a rule followed by a minority of US jurisdictions. The question seems inconsistent with NCBE’s intent to test “a focused set of clearly identified fundamental legal concepts and principles needed in today’s practice of law.” A minority rule would have to be very influential to fit that description. I suspect that one of NCBE’s subject-matter experts composed this question without realizing that the tested rule was a minority one. Given the breadth of jurisdictions in the United States, and the complexity of legal principles, that’s an easy mistake to make.

That breadth and complexity prompts this recommendation: NCBE should publish a complete list of the doctrinal rules that it plans to test on the NextGen exam. The Content Scope Outlines, which describe areas of law to be tested, are not sufficient. Nor is it sufficient to refer to sources of law, such as the Federal Rules of Evidence or various Restatements. Instead, NCBE should spell out the actual rules that will be tested–and should do that now, while jurisdictions are evaluating NextGen and educators are starting to prepare their students for the exam.

NCBE’s Content Scope Committee, on which I served, recommended creation of this type of “rule book” in late 2021. I hope that NCBE has been working during the last two years to implement that recommendation. Here are some of the reasons why we need NCBE to “lay down the law” that it plans to test on NextGen:

“Fundamental Concepts” Are Shapeshifters

Lawyers often assume that there is a body of fundamental legal concepts that states agree upon, experts endorse, law schools teach, and the bar exam can test. But there is plenty of evidence that this assumption is wrong. Consider the American Law Institute‘s ongoing Restatements of the Law. The Restatements “aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands.” In other words, they attempt to summarize the black letter law in major subjects. Yet the experts who formulate these Restatements take years–often decades–to agree on those principles. The Institute’s first Restatement of Torts took sixteen years (1923-1939) to produce. The Restatement Second of Torts took even longer, twenty-seven years stretching from 1952-1979. And the Third Restatement, which experts began discussing in the early 1990s, still isn’t complete–thirty years later.

Even the Federal Rules of Evidence, which may be the most verifiable set of legal principles tested on the bar exam, are subject to different interpretations among the circuits. The federal Advisory Committee on Evidence Rules discusses these differences and ambiguities at least twice a year. Sometimes the differences prompt amendments to the Federal Rules of Evidence; other times they persist.

There are probably some legal principles that all states and federal circuits apply in a similar manner. But many more, my research suggests, vary by time and place: they are shapeshifters. Given this variation, together with the breadth of legal principles that will be tested on the NextGen exam, NCBE needs to spell out exactly the legal principles it plans to test–and to make that rule book public.

Fair to Everyone

A public rule book is important for all bar exam stakeholders. Test-takers shouldn’t have to guess whether NCBE will test a majority or minority rule–or to figure out on their own which is the majority rule. Nor should they have to purchase expensive prep courses for that information. NCBE, which designs the exam, should announce the specific rules it will test.

Jurisdictions also need that information. When deciding whether to adopt NextGen, jurisdictions should be able to assess the extent to which NextGen’s legal principles overlap with their own state law. For jurisdictions that adopt NextGen, the information will help them decide whether they need to supplement the exam with a state-specific component and, if so, what rules that component should cover.

Educators vary in how much they teach to the bar exam, but many would appreciate knowing the extent to which their material aligns with the rules NCBE will test. For Academic Support Faculty this information is critical. How can they help students prepare for the bar exam if they have to guess about which version of a rule will be tested?

Perhaps most important, a public rule book is essential to ensure that the bar exam serves its purpose of protecting the public. There is wisdom in the crowd. If NCBE’s expert advisors make a mistake–or fail to catch a change in the law–judges, practitioners, and professors who know the field can advise them of the need to change the rule book.

Can It Be Done?

Is it possible for NCBE to publish a rule book of this nature? If it takes experts several decades to prepare a Restatement of the Law, will NCBE be able to publish a rule book for NextGen within the next year or so? For two reasons, I think it can.

First, NCBE already has an implicit rule book. When subject matter experts create and vet questions, they are following rules of law. Their questions have right and wrong answers–and NCBE knows which answers it considers correct. A rule book simply requires the experts to lay out the answers before (or at the same time as) they design the questions. That’s good test-making policy: First decide what you want the test-takers to know, and then design questions to elicit that knowledge.

Second, NCBE does not have to weigh emerging trends or negotiate stark differences among states when laying down the law of the bar exam. If a rule is highly contested or quickly evolving, it probably doesn’t belong in the category of “clearly identified fundamental legal concepts and principles.” Or, if it does, it can be phrased in a way that reflects the existence of competing approaches. Publishing a bar exam rule book is easier than crafting a Restatement of the Law.

Concluding Thought

The creation of a bar exam rule book has another advantage, which I will discuss in my next few posts: It will help all stakeholders in the exam process think about what we mean when we refer to “fundamental legal concepts and principles.” Is there a clearly identified set of those principles? Can we agree upon them? And what is the best way to test knowledge of those concepts?

Uncategorized, Bar Exam, NCBE