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Thursday, November 13, 2008

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.

Posted by Eric E. Johnson on November 13, 2008 at 11:59 PM | Permalink


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Oh come on--you weren't excited to learn that you it wasn't actually burglary to enter a dwelling house and take someone's TV during the daytime?

Posted by: Jay | Nov 15, 2008 1:43:38 AM

Eric, no no no no no. No! I can't agree with you. The answer is not to test local knowledge at all. It's a national bar exam, so with one test, one could practice anywhere. You can tell me all you want about the importance of local knowledge, but by doing so, you're really advocating barriers to entry. In this global age, to require local knowledge for a Bar Exam, and restrict mobility, is a crying shame.

Posted by: No! | Nov 14, 2008 1:40:14 PM

The disconnect is even more profound with an exam such as the MPRE. California students, for example, are required to take the exam, yet they are in essence being test on the ABA rules of professional responsibility, as opposed to the CA PR rules. This is such a shame.

I can't imagine a justification for a skills/competency examination in professional responsibility.

Posted by: Abe Gupta | Nov 14, 2008 12:12:38 PM

One of the side-effects of replacing the MBE with a state-specific test would likely be the reduction of reciprocity among state bars. As a lawyer in Louisiana, I can't be admitted in many other states without taking the full bar again. Much of this has to do with the fact that lawyers from other states can't use their MBE-based admittance to be barred in Louisiana. I'd bet that this practice would increase if more states used state-specific exams.

Also, I believe some states do have a system that is exactly like you are describing: they use portions of the MBE and then have state-specific exams for other areas of law. I remember it came up when friends were studying for various Northeast bars.

Posted by: kathryn | Nov 14, 2008 11:00:05 AM


I think the goal is, or should be, described as "competency," rather than "ability." To me knowledge of and literacy in the law of one's jurisdiction is part of competency.

But I would argue that my proposal makes sense regardless of how one defines the goal. If the goal were showing a level of ability, as you posit, then why not use actual state law as the medium for showing that level of ability? If there is any difference in using real state law or generic fictional law to test ability, using real state law to build the exam could only provide a more accurate indication of relevant ability. But more importantly, it has the side benefit of actually imparting relevant knowledge. Either way, the process of studying for the exam will leave the taker with a residue of knowledge. If the system is changed to make that residue of knowledge more useful, then, all else being equal, the system is improved.

I am only suggesting a way to make the current bar exam process better, not perfect. If it can be fine tuned to create a much larger return on investment, why not do so?

Posted by: Eric E. Johnson | Nov 14, 2008 9:35:41 AM

Is the purpose of the bar exam to ensure a level of knowledge of state law among practitioners? I thought the goal was more showing a level of ability. (If the goal is knowledge, shouldn't the bar exam be taken every few years to ensure that lawyers maintain that level of knowledge?)

Posted by: Orin Kerr | Nov 14, 2008 12:24:36 AM

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