A Former Law Examiner Comments On the NextGen Bar Exam

"The NextGen Bar Exam represents the complete abandonment of competence as a standard."

Last week, I wrote about the apparent efforts to make the NextGen Bar Exam far simpler that the current exam. I received an email from a person who worked as a state board of law examiners. With permission, I reproduce the email, stripping any reference to the person's state.

I was an Assistant to the *** Board of Law Examiners when the *** Supreme Court decided to adopt the UBE [Uniform Bar Exam]. The sales pitch for the UBE from the NCBE, as presented to the group of assistant bar examiners I was among, was threefold.  First, it won't be any worse that the current bar exam.  Second, it will be better for the applicants because they will have more flexibility in deciding to which state they should move.  Third, everybody else is doing it.  None of those explanations supports such a dramatic change in public policy as the adoption of the UBE and the abandonment of a state-specific essay test.  For my part, I asked two questions:  If the UBE is not an affirmative improvement over the status quo, why should we change?  Why should the *** Supreme Court elevate the applicants' interests in residential flexibility over ensuring that ***'s new lawyers have demonstrated some level of competence in *** law?  I did not receive satisfactory answers to either question.  The Board and the other assistants seemed inclined to blindly defer to the so-called expertise of the NCBE and generally unwilling to consider the consequences of the policy change.

In the years leading up to that travesty, we, the assistants, received annual training from NCBE [National Conference of Bar Examiners] on how to write an essay question.  The sum total of that training was that we should avoid anything that would make the essay difficult.  They trained us to avoid including multiple issues in a single question and to avoid complex factual scenarios.  The Board and the Assistants applied strict scrutiny to each essay question, eliminating anything that would actually test the applicants' ability to see fine-line distinctions and discern issue-critical facts.  As a result, the essay questions that I wrote for the bar exam bore only passing resemblance to the essay questions that I answered *** years earlier.  When the question of adopting the UBE came up, I opposed it because it represented the elimination of the requirement that newly licensed lawyers in *** begin with a base level of understanding of *** law.  The Board and the NCBE representative explained that memorization of basic legal principles was no longer necessary because, in practice, lawyers look things up in a book or on Westlaw anyway.  To that, I asked if the test shouldn't be an open book test or if we shouldn't just revert to diploma privileges.  What is the purpose of a test, if it does not require its takers to demonstrate mastery of the subject matter?  The only response was that only minimal competence is required.  But the couldn't define what that was, except to say minimal competence is minimal competence.

In my view, the UBE, and the *** Supreme Court through its adoption, dropped the standard of "minimal competence" to an alarming level.  I could not, in good conscience, continue to serve and resigned.  The NextGen Bar Exam represents the complete abandonment of competence as a standard.  I sincerely hope that the *** Supreme Court does not adopt it.  Unfortunately, they will probably blindly defer to the "experts" at the NCBE.

Even since *** adopted the UBE, I have been hoping that it would not prove to be the disaster for professional competence that I feared it would.  And while the jury is still out on that point, the NCBE now wants to do away with any testing of the applicants' abilities to apply the facts to the law.  Any state that adopts the NextGen bar exam will have abandoned its professional obligation to ensure that new lawyers are minimally competent.

More state supreme courts should take a pause before stumbling down this road.

Comments

[Tom for equal rights]

Law examiner's comment - " Unfortunately, they will probably blindly defer to the "experts" at the NCBE."

Are the experts at the NCBE really "experts " or ideologically driven advocates?

Should a random internet blogger defer to the ideologically driven advocate posing as a expert with doing a minimum level of due diligence to ascertain the validity or reasonableness of the "experts" so called opinion? Numerous results oriented ideologically driven commentators have said yes - absolutely believe the advocates posing as experts.

[loki13]

I think it is a mistake to immediately jump to the conclusion that this is the product of "ideologically driven advocates." Once you do that, you lose the ability to understand the position of the other side, and it is not longer an issue on which you try and understand both what their position is, and, moreover, why your position is both different and superior.

Based upon what I've been seeing, I can understand where they are coming from. It really is the case that it is more important in practice to quickly understand what the issues are (and then be able to research the specific legal issues) than to understand "generic black letter law."

...but, I strongly disagree with their position overall. The bar doesn't need to be dumbed down. Very few issues in the practice of law don't involve multiple issues, or fine distinctions (as I had on my state bars when I passed two separate bars out of law school). In addition, while issue spotting is great, there does need to be testing for competence! Spotting an issue means nothing, if even after research, you don't know how to APPLY the legal rules to the issues you've spotted. And application is probably the most important part of the practice of law.

Who cares if an attorney can spot issues, when they are singularly incapable of applying the law they find (or understanding the rules they are looking up).

In short, this is a bad idea on its own merits- it has nothing to do with ideology.

[David Nieporent]

…but, I strongly disagree with their position overall. The bar doesn’t need to be dumbed down. Very few issues in the practice of law don’t involve multiple issues, or fine distinctions (as I had on my state bars when I passed two separate bars out of law school). In addition, while issue spotting is great, there does need to be testing for competence! Spotting an issue means nothing, if even after research, you don’t know how to APPLY the legal rules to the issues you’ve spotted. And application is probably the most important part of the practice of law.

Given the source of the complaints, I am appropriately skeptical about whether the NextGen people's motives and actions are being portrayed accurately. But if they are, I agree with you.

[Vryedni]

If by "appropriately" you mean "highly," I agree and I agree.

[Tom for equal rights]

Loki two separate issues in your response
first - I agree with your comments on the rigors or the exam (or lack of rigor). I am not an attorney, but based on the sample questions listed a few days ago, I would likely score 90+% on the recognition of the issues. On the current bar exam, I would be lucky to get a score approaching 30% and on exam only covering civil or criminal procedure, I would probably get zero correct. In summary on that point, dumbing the exam down is going to allow a lot of people admitted as attorney that will never demonstrate even a basic level of competency.

on the issue of ideology - (your comment - "In short, this is a bad idea on its own merits- it has nothing to do with ideology.") Maybe I am reading too much into the Ideology, though dumbing down the bar exam is following a similar trend of dumbing down standards through out a lot institutions (math and science education for example)

[loki13]

I'm not sure we can attribute this to ideology, just as I'm not sure that there has been a general "dumbing down." There are always these overhyped reports, but I see a lot of extremely young, extremely successful, and extremely driven people in a multitude of fields.

It's easy to mock the "gold star" approach, but we also have to realize that, generally, and for a large cohort of the population, most kids are much more involved, doing more work, and more extracurriculars, and at a higher level, than we were at their age.

I don't agree with some of the things going on (for example, I have ... questions ... about all of these colleges going fully test-optional or discarding standardized tests altogether), but overall I think we have a lot of quality in the youth today.

[Greg J]

"most kids are much more involved, doing more work, and more extracurriculars, and at a higher level, than we were at their age. "

Um, no.

They're doing a lot mroe "make work" and "busy work". That is true.

What they're not doing is anything that demonstrates actual intellectual competence. In fact, the "educational establishment" is fighting tooth and nail to drive out any and all measures of actual intellectual ability and competence.

See the elimination of standardized test scores. Including the "achievement tests", which were about what you learned, not just about your IQ.

And that is entirely ideologically driven

[Abdul Abulbul Amir]

That examiner displays a shocking level of racism.

[AtR]

For what it's worth, abandoning competency is the current fad:

https://www.noahpinion.blog/p/refusing-to-teach-kids-math-will

[Longtobefree]

Competence is racist now.

[Noscitur a sociis]

Well if some guy says it’s bad, that all I need to hear!

[loki13]

I have to admit, I have a lot of skepticism for anyone that would email Josh Blackman directly after reading his posts.

...that said, based on what I have seen, I also have a lot of skepticism about the proposed changes.

If you want to argue for bringing back diploma privileges, or some kind of Ilya Somin "all licensing is bad" angle, that's one thing. But if you're going to have a barrier to entry and a licensing exam, don't dumb it down. If they want to change it to make it more effective in ensuring that it is testing for people that will be competent attorneys ... sure. But this doesn't seem like what they are doing.

[David Nieporent]

Yeah, an exam that everyone passes is just pure rent-seeking on the part of exam makers/administrators/test prep people. Either eliminate the exam or ensure that it actually screens people out.

[Savagely Average]

I agree that dumbing down the exam seems an intermediate step to eliminating it, and if that’s the end point it’s better to just do it.

Talking about elimination does raise the question of why there is a bar exam. It’s back-end screening mechanism that looks to be based on two premises: (1) that some people who possess law degrees nonetheless lack minimal competence to be lawyers and (2) that the bar exam is an effective means of eliminating those people from the practice of law.

The first premise is certainly true but the second seems shaky. What standardized tests like the bar exam all have in common is that, most fundamentally, they test one’s skill at taking standardized tests. You can argue about how well that skill maps onto legal competence but it’s not 1:1. So, you are going to eliminate some group of people who have what it takes to be good lawyers but who don’t test that well. And you’re going to let through some people who lack essentials to be good lawyers but who are good test-takers.

Passing the bar exam also requires you to put everything aside and just focus on memorizing and applying legal rules for two months — and, if you do that, passing isn’t a big deal so in that sense it’s a test of your commitment to put everything on hold and do that. Maybe there’s something in that. I don’t have an answer because there’s a lack of empirical data in this country.

Also, writing this I’m struck that one thing I don’t think the bar exam tests for is legal knowledge. Because I forgot almost everything I learned while studying within a couple weeks of taking the exam.

[David Welker]

Screech!

Your idea that the bar exam SHOULD be an “barrier to entry” seems to buy into the most negative characterizations of the exam.

A more legitimate purpose for the bar exam is to provide people who want to be lawyers with sufficient incentive to study and acquire verifiable knowledge in the law.

Also, I wouldn’t characterize lowering the memorization burden as “dumbing down” the bar exam, insofar as I don’t think memorizing things that don’t need to really be memorized is efficient.

The things that should be memorized in my mind fall into two categories: (1) information that is useful to know immediately without looking it up (e.g. passwords… if you record these elsewhere, you have decreased your security at least a little) and (2) “general” information so that you have an ability to assess particular situations.

Bar exams should not be structured to be “barriers to entry” for its own sake, but instead should ensure that attorneys “know” (i.e. have memorized) certain ideas such that they aren’t “lost” or “confused” when legal issues are discussed and thus can be considered to be “experts” rather than laymen. That doesn’t mean that they actually know every relevant piece of legal knowledge.

I tend to think that the bar exam that I took (California) tended a little too much towards minutiae than more fundamental knowledge. I realize that what is minutiae and what is fundamental is somewhat subjective, and perhaps reasonable minds can disagree.

Here is how I would put it. If a test would make the so-called “Feynman learning strategy” fail, it probably isn’t a good test.

FEYNMAN learning strategy in THREE points:

1. Continually ask “Why?”
2. When you learn something, learn it to where you can explain it to a child.
3. Instead of arbitrarily memorizing things, look for the explanation that makes it obvious.

https://twitter.com/proffeynman/status/1000443890514608130

[David Nieporent]

A more legitimate purpose for the bar exam is to provide people who want to be lawyers with sufficient incentive to study and acquire verifiable knowledge in the law.

That's what law school is for. The bar exam incentivizes cramming for the bar exam, not acquiring useful knowledge.

[David Welker]

Maybe in practice. I hope that wasn't the original intent though.

[Shamie Ervin iv]

I studied in Durham, NC for the bar for the whole summer in 1973 while my wife and children stayed with my dad in Weaverville. The bar exam took two days and was a stressing monster. After I took it I sat for hours on my dad’s porch gazing at the green trees in order to “come down” from all the adrenaline. I passed but noticed that a number of law students from Ivy League schools and UNCCH flunked it.

Now I’m impressed that lawyers AND judges are either semi-competent or incompetent. Most of the judges in our courthouse here in Buncombe County are a mix of incompetence and ethical leprosy. I’m 78 now and sad to see that things have not improved, but deteriorated, in courthouses I go into. So many are bastions of anarchy and lairs of scoundrels. A Buncombe judge was recently reprimanded by our Supreme Court for chaining a defendant up without pencil and paper to take notes, while his lawyer had failed to appear. Even though the assistant district attorney did not want to proceed, the judge required her to go ahead with the preliminary hearing. The judge then found probable cause and bound the black defendant over. I noticed that a black justice on our Supreme Court dissented when the Supreme Court adopted the public reprimand of our commonly inert Judicial Standards commission. She wanted the trial judge, Edwin Clontz, to be secretly reprimanded with a letter of caution. Unbelievable. We ought to have a Louise Goldston Society and induct so many of these bad judges, and award them with plaques.

As for Clontz, shackling the unfortunate felony defendant was one of many of Clontz’s serial acts of moral turpitude. He should have been defrocked long ago and sent home to his wife, who is a convicted felon embezzler.

[David Welker]

A diploma privilege to be a "general practitioner" of law might make more sense than a generalist bar exam.

That said, I am in favor of specialized bar exams, either to earn an optional or mandatory "specialization" to practice in certain areas of the law.

The problem with the bar exam is that much of the material is not relevant to the careers of particular lawyers, who end up specializing. The system is thus not maximally efficient at allocating time.

Ultimately, bar exams aren't primarily useful because they fail people, as some argue. They are useful because they provide incentives for people to acquire expertise.

[David Welker]

...

[Suudy]

With respect to memorization, for many years I had a similar thought. When I was teaching at the university level, I let students make formula sheets so they didn't have to memorize formulas that, in the real world, they would rely upon references or computers to do the work.

But about 10 years into my professional practice, I met a peer that graduated from the Air Force Academy. He mentioned the amount of memorization they had to do at USAFA, and how they had to not only know the information accurately, but had to be capable of recalling it quickly. The point was not to memorize, but to train officers to be able to quickly receive information and recall it as necessary. He found this skill immensely valuable in his career, especially when "put on the spot" to answer detailed questions.

I can imagine in oral arguments the ability of lawyers to quickly and accurately answer questions. Or when approaching the bench or in chambers arguing points of law or procedure. These memorization exercises aren't necessarily about the information itself being memorized, but about training the mind to be able to quickly and accurately recall information.

[David Welker]

I tend to think that when people suffer, they tend to try to finding meaning in the suffering.

Example. Medical interns spend long hours working. Argue *something something* about the importance of endurance and persistence when seeking to save lives.

But the data shows that patients whose care is partially taken care of by medical interns at the end of long shifts have worse outcomes.

What should we base our judgment on? (1) People emotionally invested in justifying the status quo or (2) the data showing that such long work hours compromise patient safety?

So far (1) seems to be winning out over (2). I do not celebrate that outcome. I think it is evidence that otherwise rational and intelligent people have allowed their emotions to take over.

Same with the Air Force officer. There may be some value in extreme memorization activities. But is it worth the opportunity cost?

I doubt it.

[Magister]

In fairness, what's valuable to the Air Force in its officers might be different than what lawyers need, given that the wheels of justice turn slowly.

[Suudy]

Fair enough. For most lawyers time is not of the essence, and quick synthesis and quick recall of information is not required. But I would think that a lawyer that is capable of that is better equipped than one that is not.

To be clear, it is speculation on my part whether the bar exam's emphasis on memorization is intended to train future lawyers to have better recall skills. Maybe it is a relic of a time gone by when the ability to pull up law and procedure quickly on a device in seconds wasn't possible.

[Magister]

With AIs fabricating results, that ability may not last, and then we'll need lawyers who have memorized everything. Get off my lawn, you AIs!

[Suudy]

> I tend to think that when people suffer, they tend to try to finding meaning in the suffering.

Sure. But that does not mean all suffering is meaningless.

[nystateofmind]

If that were the purpose I think the bar exam would be a better measure would be doing an essay format similar to the current MBE, but which states could make state specific.

In the "case file" would be all of the relevant statutes, cases, facts, etc. and then the aspiring lawyer would have to answer a series of questions related to that case file with citations to obtain full credit. You could make the "case file" sufficiently large that reading through it all could take easily an hour of time where it is expected that reading the file and answering the questions related to it would take 90 minutes per "case file."

My beef with Law School exams and then the Bar, at least when I took it, were those who loved throwing in extraneous facts or those who would take a Domestic Relations question involving no children for most of the answer and then the final prompt would be something asking you how child support would have been determined had their been children. If there are not children, no Judge is going to ask you to recite the standards for child support in your state.

[hmi]

No problem, at least not for some years. All you'll need to do is to make sure your attorneys are white and over 50.
Reminds me of a conversation I had some 45 years ago with an older black woman who told me that she refused to be treated by black physicians, as it was only the more mature white physicians who possessed the necessary experience and she could be confident had gotten into medical school entirely on merit.

[Alex]

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[The Turtle Dove]

I’ve had the good fortune to pass both of my ordeals, both without a preparation course, which is really all that can be said for them.

The principle of sufficient reason simply doesn’t apply to the gatekeepers and entrance rituals of the legal profession in the US. After the 1L curriculum, the professors, for the most part, are neither trying to create real legal minds nor doing scholarship that bears any relation to the genuine legal scholarship of a hundred years ago — they’re just imitating the other law professors, which mistakes the way of individuating a field (e.g., biology, literature) for the way of individuating a discipline (e.g., karate, professional legal education). The bar examiners are creatures of the bar associations, who are trying to indirectly regulate the law schools, both the bad, where the students don’t learn any law, and the good, where the professors don’t teach any law. So they set up this knighthood/samurai test of will, and it’s a mistake for the aspirants to assume that it’s a logically necessary thing. Afterwards, the hiring committees are looking for something utterly unrelated to either the ideals or the evils of the previous two steps, basically seeking larvae who can be pyramided in and created anew or shuffled off within five to seven years.

It’s a mistake to think that one goes to school to learn the law, then takes a test to see if they have in fact learned the law, and then practices the law. That’s simply not what the mechanism is anymore.

Some of the old early modern exercises of the Inns have been published in the Selden Society’s volumes; I’d like to see either the students or the faculty of a modern law school have a try at even the easiest of them.

Mr. D.

[Eric Rasmusen]

Keep the bar exam, but eliminate the law school requirement. Has anyone written an article arguing for the law school requirement, as opposed to keeping just the bar exam?

But hte bar exam should be hard enough that you can't pass without at least a year of studying, at law school or on your own.