The February 2015 Bar Exam

April 12th, 2015 / By Deborah J. Merritt

States have started to release results of the February 2015 bar exam, and Derek Muller has helpfully compiled the reports to date. Muller also uncovered the national mean scaled score for this February’s MBE, which was just 136.2. That’s a notable drop from last February’s mean of 138.0. It’s also lower than all but one of the means reported during the last decade; Muller has a nice graph of the scores.

The latest drop in MBE scores, unfortunately, was completely predictable–and not primarily because of a change in the test takers. I hope that Jerry Organ will provide further analysis of the latter possibility soon. Meanwhile, the expected drop in the February MBE scores can be summed up in five words: seven subjects instead of six. I don’t know how much the test-takers changed in February, but the test itself did.

MBE Subjects

For reasons I’ve explained in a previous post, the MBE is the central component of the bar exam. In addition to contributing a substantial amount to each test-taker’s score, the MBE is used to scale answers to both essay questions and the Multistate Performance Test (MPT). The scaling process amplifies any drop in MBE scores, leading to substantial drops in pass rates.

In February 2015, the MBE changed. For more than four decades, that test has covered six subjects: Contracts, Torts, Criminal Law and Procedure, Constitutional Law, Property, and Evidence. Starting with the February 2015 exam, the National Conference of Bar Examiners (NCBE) added a seventh subject, Civil Procedure.

Testing examinees’ knowledge of Civil Procedure is not itself problematic; law students study that subject along with the others tested on the exam. In fact, I suspect more students take a course in Civil Procedure than in Criminal Procedure. The difficulty is that it’s harder to memorize rules drawn from seven subjects than to learn the rules for six. For those who like math, that’s an increase of 16.7% in the body of knowledge tested.

Despite occasional claims to the contrary, the MBE requires lots of memorization. It’s not solely a test of memorization; the exam also tests issue spotting, application of law to fact, and other facets of legal reasoning. Test-takers, however, can’t display those reasoning abilities unless they remember the applicable rules: the MBE is a closed-book test.

There is no other context, in school or practice, where we expect lawyers to remember so many legal principles without reference to codes, cases, and other legal materials. Some law school exams are closed-book, but they cover a single subject that has just been studied for a semester. The “closed book” moments in practice are much fewer than many observers assume. I don’t know any trial lawyers who enter the courtroom without a copy of the rules of evidence and a personalized cribsheet reminding them of common objections and responses.

This critique of the bar exam is well known. I repeat it here only to stress the impact of expanding the MBE’s scope. February’s test takers answered the same number of multiple choice questions (190 that counted, plus 10 experimental ones) but they had to remember principles from seven fields of law rather than six.

There’s only so much that the brain can hold in memory–especially when the knowledge is abstract, rather than gained from years of real-client experience. I’ve watched many graduates prepare for the bar over the last decade: they sit in our law library or clinic, poring constantly over flash cards and subject outlines. Since states raised passing scores in the 1990s and early 2000s, examinees have had to memorize many more rules in order to answer enough questions correctly. From my observation, their memory banks were already full to overflowing.

Six to Seven Subjects

What happens, then, when the bar examiners add a seventh subject to an already challenging test? Correct answers will decline, not just in the new subject, but across all subjects. The February 2015 test-takers, I’m sure, studied just as hard as previous examinees. Indeed, they probably studied harder, because they knew that they would have to answer questions drawn from seven bodies of legal knowledge rather than six. But their memories could hold only so much information. Memorized rules of Civil Procedure took the place of some rules of Torts, Contracts, or Property.

Remember that the MBE tests only a fraction of the material that test-takers must learn. It’s not a matter of learning 190 legal principles to answer 190 questions. The universe of testable material is enormous. For Evidence, a subject that I teach, the subject matter outline lists 64 distinct topics. On average, I estimate that each of those topics requires knowledge of three distinct rules to answer questions correctly on the MBE–and that’s my most conservative estimate.

It’s not enough, for example, to know that there’s a hearsay exemption for some prior statements by a witness, and that the exemption allows the fact-finder to use a witness’s out-of-court statements for substantive purposes, rather than merely impeachment. That’s the type of general understanding I would expect a new lawyer to have about Evidence, permitting her to research an issue further if it arose in a case. The MBE, however, requires the test-taker to remember that a grand jury session counts as a “proceeding” for purposes of this exemption (see Q 19). That’s a sub-rule fairly far down the chain. In fact, I confess that I had to check my own book to refresh my recollection.

In any event, if Evidence requires mastering 200 sub-principles of this detail, and the same is true of the other five traditional MBE subjects, that was 1200 very specific rules to memorize and keep in memory–all while trying to apply those rules to new fact patterns. Adding a seventh subject upped the ante to 1400 or more detailed rules. How many things can one test-taker remember without checking a written source? There’s a reason why humanity invented writing, printing, and computers.

But They Already Studied Civil Procedure

Even before February, all jurisdictions (to my knowledge) tested Civil Procedure on their essay exams. So wouldn’t examinees have already studied those Civ Pro principles? No, not in the same manner. Detailed, comprehensive memorization is more necessary for the MBE than for traditional essays.

An essay allows room to display issue spotting and legal reasoning, even if you get one of the sub-rules wrong. In the Evidence example given above, an examinee could display considerable knowledge by identifying the issue, noting the relevant hearsay exemption, and explaining the impact of admissibility (substantive use rather than simply impeachment). If the examinee didn’t remember the correct status of grand jury proceedings under this particular rule, she would lose some points. She wouldn’t, however, get the whole question wrong–as she would on a multiple-choice question.

Adding a new subject to the MBE hit test-takers where they were already hurting: the need to memorize a large number of rules and sub-rules. By expanding the universe of rules to be memorized, NCBE made the exam considerably harder.

Looking Ahead

In upcoming posts, I will explain why NCBE’s equating/scaling process couldn’t account for the increased difficulty of this exam. Indeed, equating and scaling may have made the impact worse. I’ll also explore what this means for the ExamSoft discussion and what (if anything) legal educators might do about the increased difficulty of the MBE. To start the discussion, however, it’s essential to recognize that enhanced level of difficulty.

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