A Better Bar Exam

The worst thing about studying for the bar, for me, was the feeling that I was wasting two months of my life learning fictional law.

The Multistate Bar Exam, in order to be useable by any state, does not test the law of any state. Instead, its questions on contracts, criminal law, real property, and torts are based on “fundamental legal principles,” and not on the actual law.

Every state but Louisiana and Washington uses the MBE. That’s a shame. A lot of time and effort ends up squandered. The irony of the bar-exam process is that while taking the MBE involves trying to prove competency to practice in a particular state, the process of studying for the MBE is a lost opportunity for gaining that competency.

A reasonable approach might be for the MBE to be split into two exams. One, the national exam, could test the federal subjects that are already on the current MBE – constitutional law, federal civil procedure, and federal evidence. Sales – at least insofar as Article 2 of the Uniform Commercial Code is truly uniform – would also be an appropriate subject of the national test. If there is a desire for more subject matter that statistically unites bar-takers across the country, I would support adding in federal fundamentals bankruptcy and tax.

Then the second test could be a battery of torts, property, contracts, and criminal law questions that are customizable by each state bar. That way, a state that follows the minority rule on any given doctrine could change the question or answer key accordingly.

I realize this would be a tremendous inconvenience to state bar examiners, but the cost would be more than outweighed by the substantial gains to be had in the competency and knowledge of new lawyers and the service received by clients.