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Amid Calls For Reform, NCBE Approves Massive Overhaul To 'No Longer Test Family Law'

Meet the new test. Same as the old tests... but now in one booklet!

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Alright, there are more proposed changes to the bar exam than just dropping Family Law. They’re also ditching Trusts and Estates, Conflict of Laws, and Secured Transactions. And the test will be taken on a computer.

Beyond that, it’s hard to tell what this new exam is going to look like in five years when they finally roll it out. The only thing we can tell from this announcement that after the pandemic forced a reckoning with the rot and fundamental uselessness of the bar exam in accomplishing its sole stated mission of guaranteeing that licensed attorneys are fit to practice we’re going to get… more or less the exact same test.

The NCBE website explains what this new test means in the clearest terms they can muster:

The Board’s approval paves the way for work to begin on the implementation of the Task Force’s recommendations. Major steps of the implementation will include

  • developing content specifications identifying scope of coverage;
  • drafting new types of questions for integrated testing of knowledge and skills;
  • ensuring accessibility for candidates with disabilities;
  • field-testing new item formats and new exam content;
  • conducting analyses and review to ensure fairness for diverse populations of candidates;
  • evaluating options for in-person computer delivery of the exam;
  • establishing scoring processes and psychometric methods for equating/scaling scores;
  • developing test administration policies and procedures;
  • assisting jurisdictions to prepare and supporting them in activities such as setting passing score requirements and amending rules to align with changes to the exam; and
  • providing study materials and sample test questions to help candidates prepare.

From what I can tell… they’re going to have a test. Seriously, I’ve read 1L resumes with more robust work experience descriptions. One of the items is literally “write new questions” which, like, no kidding.

Maybe there’s a graphical method that sheds light on this:

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That… didn’t help much at all.

It’s nice to see “skills” gets some lip service, especially after the NCBE dismissed a comprehensive academic study that prescribed more skills testing as fake news. But based on what they’ve written, it seems like the skills they’re talking about testing amounts to just slapping the existing “skills” tested by the MEE and MPT into the MBE and calling it a day and that’s not what we’re all talking about.

An integrated exam reflects a fundamental shift from the current Multistate Bar Examination (MBE), Multistate Essay Examination (MEE), and Multistate Performance Test (MPT), which are discrete components covering specific knowledge and skills and using single items of the same format within each component.

Or maybe it’s more accurate to say they’re smashing the MBE and MEE into the MPT. But whatever.

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Amit Schlesinger, executive director of legal programs at Kaplan, points out that this new exam’s move to computer format is a pretty big deal and obviously from the perspective of preparing students to take the test, an integrated exam presents new challenges:

These are the biggest changes to the bar exam since 1972, when the Multistate Bar Examination was introduced, so it’s not such a coincidence that these sweeping changes include its potential elimination. In most states, your MBE score is worth 50 percent of your score, so in a few years when the new exam launches, it will look and feel substantially different than the one we have today. The shift to an online modality probably has many students thinking, “What took them so long?” Most major licensing exams and admissions exams, including the GRE, GMAT, LSAT, MCAT, the NCLEX-RN exam, and most steps of the USMLE medical licensing exam, are already taken on a computer. We also know that this is a direction that the National Conference of Bar Examiners had been moving in since before the pandemic. While this probably sped the transformation along, the die was already cast in some respects in 2019 when they launched the computer-based Multistate Professional Responsibility Examination.

And yet with the weight of the criticism around licensure focused on “client interaction and negotiation” or “making the law school curriculum matter” or “ending the fixation on generalism” or doing frankly anything that might reflect the actual practice of law, announcing that a few obscure subjects will be dropped, the test will move to a computer, and throw three test components together for some NCBE Megazord leaves concerned observers flat.

Legal tech guru Richard Susskind tells a story about power tool executives being asked by their bosses “what do we sell?” The wrong answer that most people volunteer is “drills.” In reality, what they sell are “holes.” Clients want a hole, and the drill is just the best delivery mechanism the company currently offers. But the job is to sell the client a hole.

Reading through the recommendations as well as the three phase reports that fed into it, one can’t help but feel like the NCBE writes tests and walked into this “three-year study” determined to deliver another test as substantively similar to what they’ve been doing as possible. The profession needs competent attorneys, not “12-hour tests you can give in a ballroom.” If the latter was once the best method to deliver the end product, it certainly isn’t now. Jurisdictions now, more or less, require three years of accredited legal education and yet this expensive endeavor is somehow disconnected from licensing. The practice of law is more specialized. Advancements in technology have radically changed how attorneys interact with clients. Any serious effort to reform the licensing process would take all of this into account.

Instead we’re getting a drill.

But a computerized drill!

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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