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Fundamental Legal Concepts and Principles
November 6th, 2023 / By Deborah J. Merritt
I talk to a lot of lawyers about licensing, and many suggest that the licensing process should ensure that new lawyers know basic concepts that are essential for competent law practice in any field. Detailed rules, they agree, vary by practice area and jurisdiction; it would be unfair (and impractical) to license lawyers based on their knowledge of those detailed rules. Instead, knowledge of basic concepts should support learning and practice in any area of the law.
NCBE seems to embrace that approach. As I discussed in my last post, NCBE is designing its NextGen bar exam to test “foundational legal skills” and “clearly identified fundamental legal concepts and principles needed in today’s practice of law.” Let’s leave skills aside for now and focus on those fundamental legal concepts and principles. Are there such concepts? Do lawyers agree on what they are? How does a licensing body like NCBE identify those concepts?
The Search for Fundamental Legal Concepts
NCBE began its quest for appropriate exam content by holding extensive listening sessions with bar exam stakeholders. The report summarizing these listening sessions pointed to three key points related to the knowledge tested by the exam: (1) Stakeholders generally agreed that the seven subjects currently tested on the MBE include the “core content” that newly licensed lawyers need to know. (2) Within that content, the current exam tests too many “nuanced issues and ‘exceptions to exceptions to rules.’” (3) Overall, the current bar exam tests too many subjects, since both NCBE and some states add content to the exam through their essays.
NCBE then conducted a nationwide practice analysis to “provide empirical data on the job activities of newly licensed lawyers.” This survey, which followed standard practice for identifying the content of licensing exams, asked respondents to rate 77 different knowledge areas. For each area, respondents were asked to give one of four ratings:
- 0 — this area of knowledge is not applicable/necessary for a newly licensed lawyer
- 1 — this area of knowledge is minimally important for a newly licensed lawyer
- 2 — this area of knowledge is important but not essential for a newly licensed lawyer
- 3 — this area of knowledge is essential for a newly licensed lawyer
This rating system followed standard practice, but it was not tightly focused on “fundamental legal concepts.” Each of the 77 knowledge areas on the survey might have contained at least one fundamental concept. In entry-level law practice, it may be more important for a lawyer to know a little about each of these areas (so that they can identify issues in client problems and seek further information) than to know a lot about a few of them.
Here’s an example: Admiralty law ranked dead last among the 77 knowledge areas included in NCBE’s practice analysis. But shouldn’t entry-level lawyers know that admiralty is a distinct field, governed by rules of its own and litigated exclusively in federal court? And that admiralty law governs even recreational boating on navigable waters within the United States? Otherwise, a new lawyer might waste time analyzing a water skiing injury under general negligence principles–and file a lawsuit in the wrong court.
The same is true of other low-ranking subjects in the NCBE practice analysis. Shouldn’t new lawyers at least know when principles of workers compensation, tax law, juvenile law, and dozens of other practice areas might affect their client problems?
“Fundamental concepts,” in other words, differ from “common practice areas,” although there is some overlap between the two. The concept of negligence, for example, is one that cuts across many practice areas–and is also central to a common practice area (personal injury law). But much of the time, the two types of knowledge diverge. Which is essential for minimum competence? Concepts that cut across practice areas, rules of law in fields where new lawyers commonly practice, or both?
The top ten knowledge areas identified in NCBE’s practice analysis underscore this tension. Four of the knowledge areas (civil procedure, contract law, rules of evidence, and tort law) are subjects in which many new lawyers practice–although those subjects also contain some concepts that cut across practice areas. The six others (rules of professional responsibility and ethical obligations, legal research methodology, statutes of limitations, local court rules, statutory interpretation principles, and sources of law) reference concepts that cut across many practice areas. In fact, four of these six (professional responsibility and ethical obligations, legal research methodology, statutory interpretation principles, and sources of law) cut across all practice areas.
Two of the subjects on NCBE’s top-ten list, statutes of limitations and local court rules, are particularly interesting because they directly embody a fundamental principle. I doubt that the lawyers who responded to NCBE’s survey thought that entry-level lawyers should know specific statutes of limitations or all local court rules. Instead, they seemed to be signalling the importance of these fundamental concepts. All entry-level lawyers should know that most causes of action have statutes of limitations and that it is essential to determine those limits at the very beginning of client representation. It might also be fundamental to know common ways in which the running of a limitations statute can be tolled. Similarly, all entry-level lawyers should understand that local courts have rules, that these rules often differ from the federal and state rules, and that it is essential to consult those rules. As a clinic professor, I can attest that many third-year law students don’t even know that local court rules exist, much less the type of subjects they govern. Yet local courts handle the overwhelming bulk of lawsuits in this country.
Next Steps
How did NCBE resolve this tension between fundamental legal concepts and rules that govern common practice areas? I’ll explore that subject in my next post. And then I’ll tie this discussion back to the need for a rule book outlining the “legal concepts and principles” that NCBE plans to test on the NextGen bar exam.
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?
The Bot, the Bar Exam, and Entry-Level Law Practice
October 6th, 2023 / By Deborah J. Merritt
Generative AI will transform legal education and law practice in ways that we are just starting to imagine. To stretch our imaginations–and begin thinking about the ramifications for legal education–I decided to feed GPT-4 some of the sample questions that NCBE has prepared for the NextGen bar exam. I wasn’t interested in whether GPT-4 could pass NextGen; that’s almost a given at this point. Instead, I used these questions as examples of the kind of client problems that a newly licensed lawyer might face. How could GPT-4 help that lawyer address those problems?
In this and a series of future posts, I’ll explore that question. Along the way, I hope to develop some insights into how GPT-4 could reshape legal education and the bar exam. Let’s get started with the first problem facing our hypothetical entry-level lawyer.
An Illegal Search?
NCBE’s first sample question is a multiple-choice question centered on a criminal defense lawyer representing a client who has been charged with possession of fentanyl. Check out the question on the NextGen site.
This question follows a new format that NCBE has deveoped for the NextGen exam. It assesses the test-taker’s familiarity with legal concepts without requiring recall of detailed rules. GPT-4 easily chose the correct answers here (A and F). But that’s not particularly interesting given what we already know about GPT-4’s capabilities. Instead, let’s imagine that a new lawyer confronted this problem at work and wasn’t sure where to start. Workplace problems don’t come with multiple-choice answers, so I started a new chat (on a different day) and fed GPT-4 the same problem with these modifications:
- I began the prompt with the words “Imagine that you are a criminal defense lawyer . . . . “
- I changed the call of the question to “What legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress?”
- I omitted the provided answers.
Here’s what GPT-4 advised me:
- Standing to Challenge the Search: One of the most crucial questions is whether your client has standing to challenge the search. A defendant can only challenge a search if they had a “reasonable expectation of privacy” in the place searched. Since your client doesn’t live in the uncle’s house and was not present during the search, you’ll need to determine if they had a legitimate expectation of privacy in the guest bedroom.
- Consent to Search: Even if a search would have been illegal without a warrant, if someone gives the police permission to search, that search is usually considered reasonable and, therefore, legal. Here, the uncle gave the officers consent. You would need to research:
- Whether the uncle had actual authority or the apparent authority to consent to a search of the guest bedroom.
- If the consent was voluntarily given or if there were any issues of coercion, duress, or misunderstanding.
- Scope of the Consent: It’s essential to determine if the search exceeded the scope of the consent given. If the uncle only agreed to a cursory look around and the police conducted a detailed and invasive search of the guest room, then the search might exceed the scope of the consent.
- Exigent Circumstances: You’d need to evaluate if the police are claiming any exigent circumstances that justified a warrantless entry. A mere noise complaint might not rise to the level of an exigent circumstance, but it’s good to be prepared for any arguments the prosecution might raise.
- The Plain View Doctrine: If contraband or evidence of a crime is in plain view and an officer has a legal right to be in the position to have that view, they can seize it without a warrant. Determine if the fentanyl was in plain view when the officers conducted the search.
- The Fruit of the Poisonous Tree Doctrine: If the initial entry or search was illegal, then any evidence discovered as a result of that illegal action could be considered “fruit of the poisonous tree” and might be suppressed.
- State Constitution and Statutes: Besides the U.S. Constitution’s Fourth Amendment, look into the state constitution and any state statutes that might provide additional protections against unreasonable searches and seizures.
- Recent Case Law: It’s crucial to research recent cases in your jurisdiction to see how courts have ruled on similar issues. Case law can give you an idea of how your motion might be received and can be used to support your arguments.
Once you’ve researched these topics, you’ll have a clearer picture of the strengths and weaknesses of a motion to suppress in this situation.
This is an enormously helpful response: It identifies several angles for the lawyer to explore and gives some detail about each one. I particularly like the fact that GPT-4 advises the lawyer to remember the state constitution and statutes; those do provide additional protection in some states. And I like the final reminder to check recent case law. New attorneys (and even more senior ones) sometimes forget that step. At least on this problem, GPT-4 serves as an excellent issue spotter.
Ethan Mollick has described GPT-4 as an intern who is willing to do lots of work quickly and without pay. In this situation, I think of GPT-4 as a group of senior mentors that a new attorney can tap for advice. Some of the advice is better than other advice, and some advice is just plain wrong: Even very distinguished senior lawyers sometimes make a mistake. But as this example shows, GPT-4’s collective wisdom is well worth tapping.
Our new lawyer, of course, still has a lot of work to do. In my next post, I’ll explore what the new lawyer might do next–and how GPT-4 might continue to help.
GPT-4 on Legal Education and Licensing
March 20th, 2023 / By Deborah J. Merritt
ChatGPT has written passable law school essays, and GPT-4 has aced the bar exam. But what if, instead of asking AI to take our tests, we asked it about the future of legal education and licensing?
My colleague Andrea Sinner, who served as the Executive Director of the ABA Commission on the Future of Legal Education, decided to find out. While preparing for a class she co-teaches with Trish White (Professor and Dean Emerita at the University of Miami School of Law, and Chair of the ABA Commission) Andrea asked GPT-4: “What principles would we apply to the seemingly intractable problem of how to better align legal education and licensure in the United States to the modern needs for, and requirements of, legal service delivery?” That question is similar to the one that the ABA Commission asked its stakeholders.
Here is what GPT-4 had to say:
“To better align legal education and licensure in the United States with modern needs and requirements for legal service delivery, several key principles should be considered:
- Focus on Practical Skills: Legal education should prioritize the development of practical skills, such as legal research, writing, negotiation, and client counseling. This will ensure that graduates are well-prepared to meet the needs of clients in the real world.
- Technology Integration: Law schools should integrate technology into their curricula, teaching students how to use legal tech tools, such as AI-based legal research platforms, document automation, and case management systems. This will help future legal professionals stay competitive and efficient in the rapidly changing legal landscape.
- Access to Justice: Legal education should emphasize the importance of access to justice and the role of lawyers in addressing the justice gap. This can include incorporating clinical programs, pro bono opportunities, and courses on public interest law to expose students to the legal needs of underserved populations.
- Interdisciplinary Education: Law schools should encourage interdisciplinary learning, integrating courses from other fields like business, technology, and social sciences. This can help develop well-rounded legal professionals who can better understand and address the complex, multifaceted issues facing clients and society.
- Flexibility in Licensure: To better accommodate the diverse needs of legal service delivery, licensing authorities should consider offering more flexible pathways to licensure, such as limited licenses for specific practice areas or alternative routes for non-traditional applicants with relevant experience.
- Continuing Legal Education (CLE): Legal professionals should be required to participate in ongoing CLE to stay informed about changes in the law, technology, and best practices. This will help ensure that they can continue to meet the evolving needs of clients and the legal system.
- Emphasis on Ethics and Professionalism: Law schools should continue to emphasize the importance of ethics and professionalism, ensuring that future legal professionals understand their responsibilities to clients, the courts, and society.
- Collaboration and Communication: Legal education should promote collaboration and communication skills, emphasizing the importance of teamwork and the ability to work effectively with diverse clients and colleagues.
- Outcome-based Assessments: Licensing authorities should consider adopting outcome-based assessments that evaluate a candidate’s practical skills, knowledge, and ethical understanding, rather than relying solely on traditional examinations like the bar exam.
- Adaptability and Lifelong Learning: Law schools and licensing authorities should promote adaptability and lifelong learning, encouraging legal professionals to be proactive in identifying and addressing new challenges, technologies, and opportunities in the legal landscape.
By applying these principles, legal education and licensure in the United States can better align with the modern needs and requirements for legal service delivery, ultimately benefiting clients, the legal profession, and society as a whole.”
[End GPT-4] That’s a pretty eloquent statement–and a very effective summary of many ideas mooted in today’s world of legal education and licensing. One of the values of AI is its ability to synthesize ideas from a variety of sources. The synthesis, of course, depends on the materials provided to the AI in its training; it is possible that GPT-4’s sources favor the principles listed above over other perspectives on legal education and licensing. Still, it would be useful exercise for legal educators and bar examiners to consider this list. How well does your curriculum or licensing system accord with these principles?
The Bot Takes the Bar Exam
February 13th, 2023 / By Deborah J. Merritt
What does ChatGPT tell us about lawyering competence and the bar exam? I explore that with my colleague Mary Lu Bilek in this column for Bloomberg Law. Lawyers can do so much more than bots–it’s time to recognize those competencies and better assess them in the licensing process.
The Rule Against Perpetuities
January 16th, 2023 / By Deborah J. Merritt
We’ve known for a while that the July 2022 UBE included two (yes, two!) essays requiring detailed knowledge of the rule against perpetuities. NCBE has now released the essay questions from that exam, and I reviewed them today. Yes, there are two questions requiring knowledge of the rule against perpetuities–one question labelled “Trusts/Decedents’ Estates,” and the other labelled “Real Property.”
Most alarming, each question requires the exam-taker to recall a different version of the rule. The first question posits that the jurisdiction follows the common law rule against perpetuities; the second refers to the Uniform Statutory Rule Against Perpetuities.
Minimally competent lawyers do not need to recall from memory any version of the rule against perpetuities–much less two versions! A competent lawyer would recall that legal rules sometimes limit the power of property owners to restrict uses of property far into the future (that’s what I call a “threshold concept“) and would then research the law in their jurisdiction. Even if the lawyer had worked in the jurisdiction for 20 years, they would check the rule if they hadn’t applied it recently; rules change and this rule is too important (when it applies) to trust to memory.
Professors who still teach the rule against perpetuities might require their students to recall both versions of this rule for an end-of-semester exam. Memorization is one way to embed threshold concepts, although there are other methods (such as a deep understanding of the policies behind these concepts) that I find more effective. But there is no excuse for this type of memorization on a licensing exam that covers legal rules drawn from a dozen or more subjects.
Let’s hope this unfortunate exam redoubles NCBE’s commitment to limiting both the scope of the NextGen exam and the amount of memorization it will require. But even if that exam fulfills NCBE’s promises, it won’t debut until 2026. We need to reduce the amount of unproductive memorization required of exam-takers during the next three years. Two different versions of the rule against perpetuities? Really?
Don’t Disparage
January 7th, 2023 / By Deborah J. Merritt
The AALS Annual Meeting is wrapping up here in San Diego. I’ve attended several terrific panels, enjoyed time with old and new friends, and had many engaging conversations. But one comment from this meeting will particularly stick with me. Those are some words from Dean Danielle Conway, uttered during an “author meets reader” session focused on Joan Howarth’s superb new book, Shaping the Bar.
“Legal educators,” Dean Conway said, “should stop disparaging one another.” I thought immediately of all the cutting comments I’ve heard (and, I confess, made) over the decades of my academic career. But Dean Conway’s point referred to more than this individual sniping. She noted that whenever we say things like “top-20 law school,” “national law school,” or “top law school,” we implicitly disparage other law schools. And we use those attributions to cloak ourselves in the same kind of gauzy prestige that we purport to deplore in US News.
Why do we so often feel the need to define ourselves as better than others? Or to define ourselves in ways that sharpen divisions in the legal academy? “I teach at a school that values scholarship.” “I teach at a school that values teaching.” “I’m a theory person.” “I’m a hands-on practice person.”
I’m not naive enough to think that we can erase comments that implicitly disparage others. And sometimes it is worthwhile to talk about our differences, especially if we can move past rhetoric to talk about the actions behind those words. How exactly does your school value scholarship or teaching? Is it possible to value both equally? Why not?
But even if we can’t eliminate comparative identifications from our conversations, I’d like us at least to note those phrases when they occur. Was it necessary to refer to a school as a “national one”? Or to note that a friend teaches at a “top 20 law school”? As Dean Conway so acutely points out, we cast a lot of negativity with those phrases.
Stephen Carter on the Bar Exam
July 26th, 2022 / By Deborah J. Merritt
Eminent Yale Professor Stephen Carter has penned a thoughtful critique of the bar exam. Professor Carter notes the exam’s similarities to the LSAT, which some law schools have abandoned as an admissions requirement. In addition to their shared affection for multiple choice questions, the LSAT and bar exam both constrain the diversity of our profession. Despite the bar exam’s disproportionate racial impact, Professor Carter notes, the exam has never been properly validated. Here, he cites a column I wrote in 2017 for the AALS Newsletter.
As I wrote then, state bar examiners and NCBE designed the bar exam around a definition of minimum competence that they “felt in their bones.” NCBE did not conduct a practice analysis of the knowledge and skills that new lawyers need until 2012. That analysis supported some of the doctrinal subjects that NCBE was testing, but not the depth of memorization required by the exam. The analysis also confirmed that skills like researching the law, fact gathering, negotiating, and interviewing were essential for law practice–all skills conspicuously absent from the bar exam.
NCBE conducted another practice analysis in 2019, which once again exposed numerous flaws in the exam. My own research, conducted with Logan Cornett and IAALS (the Institute for the Advancement of the American Legal System), reached a similar conclusion: the written bar exam tests both too much and too little. It restricts admission to the profession (especially of people of color) without adequately protecting the public.
NCBE is developing a new exam that will better serve the goals of licensing, but that exam won’t be ready until 2026. And it may still demand more memorization than new lawyers need while omitting critical skills like legal research. Lawyers don’t memorize the millions of state, local, and national rules that govern our society; they master threshold concepts and research techniques that allow them to find the rules they need. No matter how improved, NCBE’s bar exam is likely to remain an artificial barrier to entry into the legal profession.
How else can we license lawyers? Professor Carter suggests wider use of Wisconsin’s diploma privilege–licensing all graduates of ABA-accredited law schools. Here I part ways with him. If law schools taught law students all of the ways they need to think like a lawyer, I might agree. But most law schools persist in the illusion that 3 years of reading judicial opinions (or, for many students, 1-2 semesters of reading judicial opinions followed by 4-5 semesters of downloading case squibs and course outlines from Quimbee and other sources) teaches students to “think like lawyers.”
The traditional law school curriculum shies away from the more complex thinking required to gather facts related to legal principles, interview clients and witnesses, negotiate letter matters, and counsel clients. Law school classes teach students two-dimensional thinking, while law practice requires thinking in four dimensions.
Fortunately, it is possible to improve both legal education and licensing by adopting an experiential education path to licensing. New Hampshire adopted this approach through its Daniel Webster Scholars Program. Oregon’s Supreme Court has approved a similar path in principle, and a committee is fleshing out details. These pathways assure that future lawyers learn all of the knowledge and skills they need to protect clients; they also keep the final licensing decision in the hands of bar examiners, rather than law school professors.
How do these programs work? How do they achieve reliability and fairness in a feasible manner? I’ll address those issues in future posts. But for an overview, see this research guide that I coauthored with Logan Cornett.
Public Comment on the Bar Exam
July 25th, 2022 / By Deborah J. Merritt
David Lat is hosting a “Notice and Comment on the Bar Exam” at Original Jurisdiction. Several commentators have offered thoughtful insights. Here’s mine:
One of the many problems with the bar exam is that it doesn’t test the knowledge and skills that new lawyers really need. The exam was designed based on “gut instincts” about that knowledge and skills but, as often is the case, gut instincts were wrong. The problem was compounded by well intentioned efforts to create a national exam, which has resulted in candidates memorizing a vast number of federal or “consensus” rules that they will never use in practice.
But now we have good evidence about the knowledge and skills that new lawyers actually use. NCBE’s recent practice analysis offers some insights, and the Building a Better Bar study (which I coauthored with Logan Cornett) offers more. NCBE is now building a better exam around those studies, but a written exam can’t capture many of the skills that are essential to lawyering–and it’s hard to capture the type of knowledge most new lawyers use in a uniform national exam.
States like Oregon, California, Minnesota, and Utah are considering much better alternatives, with Oregon in the lead. It is possible to assess lawyering knowledge and skills through either law school coursework (including clinics and other experiential work) or post-graduate supervised practice. For both of these pathways, bar examiners would make the final decision based on portfolios of work product and assessments from professors or others. And it is feasible to construct both of these pathways with sufficient reliability, fairness, and validity.
The benefits of change? Cheaper pathways to licensure for candidates, better protection of the public, and (most likely, given the stereotype threat that affects high stakes testing) a more diverse profession. What stands in the way? Outdated ideas about how lawyers think and work, legal education’s reluctance to embrace more experiential education, our profession’s reluctance to innovate, and good old fashioned protectionism (the bar exam may exclude more lawyers than these alternatives would).
It’s time to honor our avowed commitments to open the profession to all qualified candidates, protect the public, and increase diversity. The bar exam is not achieving those goals.
This Year Is Still Different: An Outdated Bar Exam in Troubled Times
July 19th, 2022 / By Deborah J. Merritt
** This post is coauthored with Sara J. Berman, Marsha Griggs, and Carol Chomsky. All four of us are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 10 scholars who have studied and written about the bar exam, licensing, and legal education for many years.**
Applicants for the July 2022 bar exam are buckling down for their final days of bar study. After two years of delays, remote testing, and other COVID-related changes, states have returned to traditional bar examination practices. For most applicants, this means two days of testing in large convention centers or hotel ballrooms. Following tradition, applicants will again answer questions from memory about a dozen or more doctrinal areas.
But this year’s examinees are different from those who preceded them. The pandemic overshadowed the entire law school career of 2022 graduates. Classes abruptly went online during their first year. Many received only pass/fail grades for their spring semester. That was essential relief for an upended semester, but the remedy deprived students of more nuanced information about their progress.
The pandemic continued to dog the class of 2022, limiting both work and externship opportunities. Many lost the chance to meet mentors, work in law offices, and develop confidence in their lawyering abilities. Second-year classes remained mostly online, escalating zoom fatigue and isolation. Even during their third year, when restrictions eased, extra-curricular activities and meetings were limited. Peers and professors hurried out of the room after class, reluctant to expose themselves to the latest COVID variant. Informal exchanges about the law, lawyering, and career prospects were limited for this class of aspiring attorneys.
And that’s not all. The class of 2022 experienced George Floyd’s murder at the end of their first year, a bloody attack on democracy and the Capitol during their second year, and a leaked opinion reversing Roe v. Wade during their third year. Whatever their personal beliefs about abortion, the leaked Dobbs opinion raised alarming questions about the Constitution, constitutional interpretation, and the future of other rights guaranteed by previous Courts—just as these students started studying Constitutional Law for the bar exam.
And then there were continued police shootings of unarmed Black people, attacks on Asian American women, Russia’s invasion of Ukraine, heartbreaking gun violence, and our ongoing failure to address planetary destruction. These are unsettling times for anyone committed to the rule of law. For law students still exploring their future as lawyers, the times weren’t just unsettling—they have been devastating. They may doubt both the rule of law and their own ability to affect the world around them.
Now these graduates must prepare for a difficult exam that they know bears little relationship to their practice as fledgling lawyers. Research by NCBE and others has confirmed this mismatch. A new exam may address some of these flaws, but that exam won’t be ready until 2026. Meanwhile, today’s graduates must recall hundreds of detailed rules from memory. They must also prepare to answer essay questions on conflicts of law, family law, secured transactions, and trusts and estates—all subjects that NCBE has decided need not be tested. And they will not have a chance to show their competence at negotiation, client counseling, and other skills that NCBE now acknowledges should be assessed.
As a profession, we have a responsibility to help today’s bar takers. Pandemic graduates carry a heavy load of mental distress. More than a third show symptoms of depression, and 11% have seriously considered suicide during the last year. Those burdens may impair their preparation for the bar exam and their performance on it. If they do, we can’t blame the graduates for the world that surrounds them. Nor can we blame the academic support faculty who are working double-time to help this group of graduates succeed.
No, we need to look to the profession and what we can all do to help. Several states are considering non-exam pathways to licensure. If an experiential education path had existed for current graduates, they might have built a strong sense of their lawyering efficacy during law school—while learning skills and reinforcing the doctrinal knowledge they will use in practice and. If supervised practice pathways existed, recent graduates could be demonstrating their knowledge and skills by assisting real clients and learning from supervisors this month, rather than by grinding through daily doses of multiple-choice practice questions.
We have confidence in this year’s bar applicants: confidence in their abilities, their grit, and their determination. But even in the best of times, less than three-quarters of graduates pass the bar exam on their first try. And the failure rates fall disproportionately on graduates of color, the same individuals who suffered greater physical and financial burdens from COVID; emotional stress from police killings and other manifestations of racism; and loss of important mentoring opportunities during their law school years.
This, we know, is not the best of times. Offer as much encouragement and support as you can to bar-takers this week. And get involved with activities in your state to reform our licensing system. Do it for both our graduates and the clients they will serve.
About Law School Cafe
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
Law School Cafe is a resource for anyone interested in changes in legal education and the legal profession.
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