Law Schools

'New And Improved Bar Exam' Promises To Be Neither New Nor Improved

The bar exam is potentially changing in 2026. Don't get too psyched.

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The past year functioned as a stress test on a lot of faulty American institutions from public health to basic democracy. Maybe attorney licensing doesn’t hold a candle to either of those concerns, but it’s still a crucially important process for thousands of law school graduates, the profession, and the public at large. And the only honest takeaway from 2020 is that the whole process is busted.

The in-person exams brought applicants into close contact with COVID cases, the remote exams leveled outlandish claims of cheating — some of it based solely on race — and bar examiners proved incapable of handling the burden of “actually responding to technical issues.” Beyond the test itself, we learned that state officials openly mused about using the character and fitness process to penalize anyone willing to criticize the debacle, further exposing the deep structural problems in the licensing process.

While detractors grew louder, the NCBE — the functional monopoly that controls the bar exam process nationally — issued flimsy white papers, weirdly irrelevant polling, and statements dismissing independent, meticulously researched studies as fake news. California’s bar examiners went so far as to hire a PR firm specializing in responding to mass shootings to deal with the mounting criticism.

But now, the same NCBE that spent the whole year declaring that absolutely nothing needed to change announced the results of its own three-year study conducted by its Testing Task Force promising big changes that might calm the mounting pressure on the licensing process… in five years or so.

The new recommendations would not come into effect until 2026 at the earliest, but at least they address the core problems with the exam outlined over the last year, right? Mostly wrong.

In defense of the report, it does correctly identify the need to transition the exam from one based upon encyclopedic mastery of generalist doctrinal knowledge in a profession increasingly oriented around specialization to one focused upon testing legal skills. But declaring a greater emphasis on skill seems to be the extent of the plan. From Law.com:

To that end, the Testing Task Force has recommended paring down the number of subject areas tested on the exam. Civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law and real property would continue to be tested. But family law, estates and trusts, the Universal Commercial Code and conflict of laws would be dropped.

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That’s still a whole lot of substantive material that means exactly squat to an M&A attorney. While putting an end to the tyranny of spending the summer fearing a surprise UCC section, this paring back amounts to a modest alteration at best.

It’s also still proposed as a two-day, in-person exam. The latter point may sound fine given that COVID should be gone by 2026 — knocking on wood — but much of the trouble with online exams stemmed from the effort to slap them together in a matter of months. Committing five years out to building an infrastructure capable of supporting a remote exam might have been nice. It will be exclusively on computer though!

The bar exam would also continue to be a closed-book test, meaning that examinees would not be allowed to bring in notes or consult their own reference material during the exam. However, the revamped bar exam would offer more of a “closed universe” of reference materials that would be provided to all test takers than does the current exam.

Because nothing tests the research skills required of attorneys more than being given a packet and told the answers are in these 15 pages. I may sound like a broken record, but “the practice of law is an open-book exam.” If the goal is to guarantee that lawyers possess the requisite skills to be competent attorneys, give them a problem and let them research the whole universe to find the answer. A well-constructed question will require the applicant to settle on a core body of caselaw anyway, but the actual skill is in finding those cases and figuring out that they’re important. Handing them a primer and hoping testing their ability to pin cite the right sentence isn’t much of a test.

In addition to paring down the number of legal subjects tested, the Task Force has proposed bolstering the number of legal skills incorporated in the new bar exam. Legal research and writing remain on that list, as does issue spotting and analysis. But joining them are investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management. Questions and tasks pertaining to those areas would be woven throughout the various legal scenarios presented to examinees, under the task force recommendations.

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You know where else you could go to ensure applicants mastered these skills? Law schools! The bar exam is a relic of a bygone era when people without formal training would belly up to ask for a law license. But now that almost every jurisdiction requires a law school degree — and the exceptions ask for some other form of “law school,” like California’s Kardashian option — states could just develop a curriculum, ideally standardized across borders, that requires accredited law schools to prove that candidates for admission have competency in “client counseling and advising, negotiation and dispute resolution, and client relationship and management” before they earn a degree. Multiple weeks of iterative evaluation in a course or practice clinic are far more likely to guarantee that applicants understand the material than a manufactured one-off snapshot during a 48-hour testing period.

That’s the most frustrating aspect of the bar exam conversation — states simply refuse to consider using their power to regulate the law schools themselves in favor of a goofy, antiquated test that isn’t even designed to test minimum competency. Faced with the academic finding that skills are more important to ensuring competency and protecting the public, bar examiners respond with “I’m sure we can ‘skill up’ our testing” instead of figuring out how to make sure candidates actually demonstrate these skills. And the problem is that it’s better for the examiners to keep feeding the bar exam writing machine and it’s easier for the law schools to keep collecting tuition rather than have to tell someone to stop accruing debt because they’re not capable of earning a license. It doesn’t have to be this way, everybody.

But instead, we’ll get a new test in 2026. And life will carry on just the same as it did before. Meet the new test… same as the old test but with fewer number 2 pencils. Jeez, how did Ticonderoga end up as the only vested interest screwed over in this deal?

Bar Exam Overhaul Plans Go Public. So Long, MBE [Law.com]

Earlier: What Would Be Better Than The Bar Exam?
NCBE Dismisses 114-Page Academic Report As ‘Fake News’

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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