Deborah Jones Merritt, co-author of the report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, wrote a post, Could We Create a New Bar Exam? She writes:
Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.
An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.
To address these problems, she proposes four modifications of bar exams:
- Make the Multistate Professional Responsibility Exam (MPRE) an open book exam.
- Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test.
- Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions.
- Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.
Considering students’ limited (or non-existent) clinical experience in law school, few, if any, students are “practice-ready” upon graduation. So I think that it is impossible to create a bar exam that validly indicates that they really are ready. Some countries, like Canada, don’t permit licensing of new graduates without an extended internship after graduation. To adequately prepare students to practice law and to protect the public, our lawyer licensing systems should require something like that.
That is probably a bridge too far for American legal education.
Under our circumstances, improvements along the lines that Debby suggests probably are the best we can hope for.