On Removing Conflict of Laws from the Bar Exam

Will the field survive if it is not a "bar class"?

Law.com has a story about a major planned reform to the multistate bar exam:

A new bar exam slated to debut in 2026, which will test more skills and fewer subjects than its current incarnation, is now ready for public comment from legal professionals.

The National Conference of Bar Examiners has asked the legal community to weigh in on preliminary outlines of exam content that, once finalized, will guide future test takers, law schools and exam drafters as the new exam approaches.

The NCBE, which develops bar exam content for 54 U.S. jurisdictions, has published the preliminary Content Scope Outlines for the next generation of the bar exam on its website. The bar is the test of legal skills and knowledge that most U.S. attorneys must pass before licensure.

NCBE is asking members of the U.S. legal community to review and comment on the Content Scope Outlines. The comment period will be open until April 18.

One of several changes would be the removal of conflict of laws and several other subjects from the exam:

The most noticeable change to the content planned for the new exam is the number of subjects tested, which will decrease to 8 from 12: civil procedure, contract law (including Article 2 of the Uniform Commercial Code), evidence, torts, business associations (including agency), constitutional law (including proceedings before administrative agencies), criminal law and constitutional protections of accused persons, and real property, according to NCBE.

NCBE states that the new exam will no longer test conflict of laws, family law, trusts and estates, or secured transactions, and will test some legal concepts more deeply than others.

Apparently (according to the story) this decision reflects the conclusion that conflicts and the other disfavored subjects do not arise sufficiently frequently or sufficiently universally, or that it is not important to know much about them when they do arise.

I confess that I am a little surprised at this conclusion about conflicts. Many transactions and incidents involve at least glancing contact with multiple jurisdictions, and the legal principles for what state can govern those transactions are not at all intuitive. (See this earlier post on this year's Supreme Court conflicts case.) Indeed, my experience is that lawyers who have no knowledge of the field of conflict of laws often do not even know that they have encountered a conflict of laws question.

But the bar committee presumably studied this question carefully, so I will assume that they know what they are doing. I am more interested in the possible consequences of removing conflict of laws from the bar exam.

If this change goes through, I suspect it might fully bury the scholarly study of conflicts as a field. Already, the field is regarded as something of an intellectual backwater, as I learned a decade ago when I naively told people I wanted to be a conflicts professor and learned how unfashionable and undemanded that was. One of the few countervailing forces generating any demand for conflicts professors is the sense at at least some law schools that they should probably have at least some faculty members who can teach the "bar classes." If conflicts ceases to be a "bar class," I'd predict the number of conflicts courses and conflicts professors slowly dwindles to zero.

I'm not saying that's a reason not to reform the bar exam, which should serve the interests of the public, not the interests of law professors. But it does mean that the important ideas and observations about conflicts might have to be assimilated into other fields, like constitutional law and federal courts and civil procedure, if they are not to be forgotten entirely.