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Monday, May 12, 2014

Law Profs' Role in Bar Passage--and Bar Reform

ABA Standard 301   commands that “A law school shall maintain rigorous educational program that prepares its students for (1) admission to the bar and (2) effective, ethical and responsible participation in the legal profession.” Yet we in legal education have an odd relationship with the bar exam. 

We know, of course, that it is the hurdle almost all of our students will have to clear before they are eligible to practice law.  Most of us have passed it ourselves.  We also know that bar passage has become a highly publicized metric of success.   But for reasons that I have never fully understood, law schools have turned their back on the exam by leaving “bar review” to commercial companies.   And by doing so have allowed the exam to become a test of cramming, not learning.  Here are some ideas about how to better prepare our students not just for one “make or break” exam but also for the many years of law practice ahead of them.

  1. Lets get over the idea that it’s inappropriate for law schools to help students prepare for the bar exam.   We all need to make ourselves aware of what areas of our subjects the students will be tested on.
  2. Support a movement to divide the bar exam into sections (or steps as in medical school) given over the course of law school, not all at once.  This is not the same as taking the bar exam early.  It is an organized system of objective exams that cover the first year topics the first year and then move on to more complex, scenario based questions that ask the students to actually use the information they have learned.
Essays on “bar exam reform” are as numerous as raindrops during a hurricane.  Here’s a proposal by Prof. Daniel Solave to abolish it.  This is a blog post, not a bibliography--although here are two.

The written state essay exams are mostly very consumer oriented—they look at legal problems potential clients might bring to a new lawyer.  Wills, divorce, arrest, property division, partnership, consumer fraud.   But there is tremendous variety with each state being able to make its own decision.  This may change if more states adopt the multistate essay exam.

The MBE, on the other hand, is a complex game of “gotcha.”  (go look at some problems) And it may well have gotten that way because the bar review process supports it.   Everyone’s research (public and private) finds that the most reliable indicia of bar failure is poor performance in law school. Professor Robert Anderson has put out comes at the same idea, how good are you taking tests, using LSAT scores as a factor.  But it’s not clear to me if we understand what that really means.  Could it be that students who perform poorly in law school perform poorly in bar review?   

As Jane Yankowitz points out, we know very little about what happens to the students who fail. If what the bar exam is really testing is the ability to learn a lot of things very quickly (and that’s important for a lawyer) then aside for the hazing aspect of bar study what is it really adding to the cause of protecting clients?

So what to do?  

First, we could help the students more with the existing bar exam by being more aware of what is going to be tested and how.  The MBE is quite clear about the scope of what they test.  Professor Steve Friedland has put out a book, One Hundred Rules You Need to Know to Pass the Bar Exam.   I’m using it to audit my Torts Syllabus.  Here’s a website with a lot of information about bar passage.

Second, we could get more involved in developing a series of standardized exams given throughout law school.   The timing and content of the bar exam are strange.  Neuroscience/Common Sense 101 tells us that everyone remembers best what they learned most recently.  Yet the multistate bar exam tests, in enormous detail, many first year topics

I’ve written before that medical education struggles with many of the same problems we do, and is by no means satisfied with their testing system.  But have a look at how they structure standardized testing.  Step 1 comes at the end of the first two “classroom” years, step 2  after two more years of closely supervised clinical training and step 3 after residency.   (Yes, they too have "commercial review courses" but medical students still do much of this exam prep themselves with practice question books and actual review--here and here) Note that step 2 also has a skills component including, among other things, observing a student interview and counsel a patient (who has been trained to present the symptoms of a specific disease).

Sure, you’ve heard criticisms of the bar before.   And a common response is to shrug, say it’s not perfect but it’s the best we have given limited ability to actually watch students practice law.  But I think we can give a better test that would hold students to a standard higher than cramming ability.

My goal in this blog post is not to convince or debate, but rather to start a conversation about imaging law school without commercial bar "review."









Posted by Jennifer Bard on May 12, 2014 at 10:01 PM in Books, Life of Law Schools | Permalink


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