Ask The Professor: Why Do We Need the Bar Exam Anyway?

Why have a bar exam if it is going to be more of what law school is supposed to test and does not test something important to the state giving the test?

The American Bar Association certifies and regulates law schools. Schools hire outstanding professors and have engaging curriculums. So why then do we need a super all-time final exam called the “bar exam” to determine if the law schools did their job? Does the ABA not trust law schools?

The bar exam was originally conceived as just that – a final exam to prove a student completed their education. However, that was over 60 years ago, when you could go to law school with two years of college and even take the bar without having gone to law school at all! The state bar exams moved away from that type of test when the ABA began heavier regulation of law schools and most states required a degree from an ABA-approved school in order to practice law. The bar exam became a test to see if a person has the skills and ability to practice. It was no longer a super all-time final. Are we now moving back to a super all-time final with the Uniform Bar Exam (UBE)?

Let’s use the New York and New Jersey Bar Exams as examples.

In the 1940s, the New York Bar Exam had two parts: there was the substantive law section and the objective law section (New York Practice and Evidence). It was designed as a final exam. Today, the New York Exam lasts two days. One day is the Multistate Bar Exam (MBE) that tests fundamental subjects – torts, criminal law and procedure, evidence, property, contracts, constitutional law and now civil procedure. [Please refer to the section titled “Purpose”: http://www.ncbex.org/about-ncbe-exams/mbe/overview-of-the-mbe/]. The questions are not simple ask and answer substantive questions; they require the same skills as an essay. This provides some uniformity and assurance that bar candidates have basic substantive knowledge and analytical skills.

The other day is the “New York Local Day,” which consists of five essays, 50 New York multiple choice questions, and the Multistate Performance Test (MPT). [Please refer to the section titled “New York Local Section”: http://www.nybarexam.org/TheBar/TheBar.htm]. The five essays test local New York law. There are about 18 subjects tested in five essays with each essay covering about five major rules (that’s a total of only 25 rules for 18 subjects). The essays are drafted to ask questions that an attorney may encounter in the practice of law. They do not cover the entirety of the law (on a recent exam, only one evidence rule was tested). The bar examiners are testing to see if the candidate knows New York law and if they have the ability and skills to practice. The New York essays are not a super all-time final.

The New York Bar Examiners are lawyers; no law professors allowed. The bar exam is made up by lawyers for lawyers to see if you are capable of becoming a lawyer.

Contrast that with the New Jersey Bar Exam, which many people do not understand. I often hear it being described as a law school test, which it is not. New Jersey essays stress a skill set that the State deems important to protect the public, the skill of analysis. [Please refer to the section titled “Suggestions on Answering Essay Questions”: https://www.njbarexams.org/appinfo.action?id=1].

While New York stresses the ability to apply law and to see if a person is an efficient advocate, New Jersey knows that most cases settle and instead focuses on the ability to see the strengths and weaknesses in a case.

Compare that to the UBE, which tests uniform law, much like law school, in both the essays and the MBE. [Please refer to the section titled “Purpose”: http://www.ncbex.org/about-ncbe-exams/mee/overview-of-the-mee/]. It is more like a super all-time final as opposed to a test to see if you can practice law in a particular jurisdiction.

Why have a bar exam if it is going to be more of what law school is supposed to test and does not test something important to the state? Isn’t the exam about protecting the public? How does the UBE protect the public?


Professor Joseph Marino has been a fixture in the world of legal education for the past 40 years. Whether you’re just starting law school, about to take the bar, or an attorney in need of CLE, he and Marino Legal Academy are here to help. He is the Director of Marino Bar Review and the Marino Institute for Continuing Legal Education. He writes a bimonthly column, Ask the Professor. Visit the Marino CLE page on ATL, connect with him on LinkedIn and Facebook, or email him via info@marinolegal.com.