Well, that didn’t take long. After spending years trying to claw its way out from under the bankrupting burden placed on the state’s bar examiners by the National Conference of Bar Examiners (NCBE), California will now go running right back into its arms. Or financially bloody maw, as the case may be. In a decision announced late last week, the California Supreme Court ordered the state to ditch its newly independent exam and return to the NCBE’s Multistate Bar Examination (MBE) for at least the July 2025 administration.
The February exam was an absolute disaster. The test was thrown together at warp speed, thanks to dilly-dallying while the financial crunch loomed. Once the examiners finally pulled the trigger, the state’s in-house test creation team had a fraction of the time and resources needed, the administration process proved buggy and incoherent, and then they had to admit that AI played a vague role in developing a few questions triggering the exact freakout you’d expect at the Venn diagram overlap of “bar exams” and “AI.”
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It’s not like they asked ChatGPT to come up with questions and then slapped those on the test. In fact, the AI assistance came from the psychometrician side meaning it probably just brainstormed smoother phrasings. And everything got checked by subject matter experts before landing on the exam anyway, making the use of AI on 23 of the 171 questions more of a tempest in a teapot, but that didn’t stop headlines like “California’s Bar Exam: Brought to You by ChatGPT’s Drunk Cousin.”
Because the whole exam sucked, the state Supreme Court responded by lowering the passing score retroactively to 534 and had already declared that remote testing was not ready for primetime and that July would be in person with all the costs — to both the state examiners and the applicants — that entails. Because remember, California already scaled back its testing locations in a bid to save money, which should be read as “California already increased the travel and lodging burdens on applicants in a bid to save its money.”
Having already decided to return to an in-person exam in July — eliminating the primary culprit in February’s debacle — the court flushed the progress made on a new exam too. Thus, the state returns to square one in the effort to eventually develop a remote testing solution.
And so the NCBE, the non-profit with some $175M in assets, will pass Go and will collect considerably more than $200.
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One sideshow in the California bar exam’s recent misadventures is the decision to remove several veteran subject matter experts from the process of vetting the new questions. The ousted experts assert that this compromised the process while the examiners maintain they still found sufficient expertise to keep the test sound. In any event, the reason given for excluding these experts was the fear that it would introduce intellectual property issues if folks on NCBE vetting committees started vetting rival questions. Sort of underlining the whole problem with building a testing environment where one entity writes all the questions across the country.
But how essential is the vetting process when the old test also notoriously fails to accomplish the task that is its sole justification: identifying “minimum competence.” It’s a test that labors under the insane, antiquated notion that the practice of law is defined by an M&A lawyer memorizing the rules of evidence for a closed-book exam. This is a test that failed one of the most decorated litigators in the country. And it’s a test that delivers a lawyer population demonstrably no better or worse at serving the public as having no test at all.
Which is neither here nor there as far as which entity writes the questions. But the odds of meaningful reform improve when we open ourselves up to providers who don’t have deep, vested interests in maintaining business as usual.
This is a triumph of short-term optics over long-term reform — a return to the status quo masquerading as stability.
Joe 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 or Bluesky 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.