In the U.S., the bar exam has determined the fate of eager would-be lawyers since 1738. The exam is aimed at sorting out those who have the skills to practice law from those who don’t.
However, state regulators haven’t agreed on a definition of the minimum competence needed to practice law. This begs the question, “Does the bar exam accurately identify who has what it takes to practice law?”
The Institute for the Advancement of the American Legal System (IAALS) is aiming to fill this critical gap with its recently launched Building a Better Bar: Capturing Minimum Competence project. The national research project will contribute an evidence-based definition of the minimum competence needed to practice law. The data will be used to promote an understanding of this definition. It will also inform efforts to align the bar exam and legal education with these concepts.
Capturing minimum competence
Building a Better Bar will gather feedback from 60 lawyer focus groups in 12 states about the knowledge, judgment and skills needed to practice law. The focus groups will primarily consist of new lawyers and supervisors of new lawyers. The project will also include specialized focus groups, including women, people of color, solo practitioners and rural lawyers.
“Traditional job analyses can mask the views of these groups, yet their perspectives are essential to establishing a valid measure of minimum competence,” said Deborah Merritt, professor at The Ohio State University (OSU) Moritz College of Law, in a press release. Merritt is partnering with IAALS on the project. “In the end, we will provide concrete data that state regulators can use to improve licensing, protect the public, and advance justice for all.”
IAALS held its first focus groups last week and will continue running them across the country through February 2020, said Logan Cornett, a senior research analyst at IAALS who’s leading the project. A final report is anticipated by the end of 2020.
OSU and AccessLex Institute, a nonprofit dedicated to legal education, are funding Building a Better Bar.
Call for change
The IAALS isn’t alone in its push for change. Some of the profession’s leading legal organizations and educators have questioned the bar exam’s validity for several decades, wrote Kyle McEntee in Above the Law. McEntee is executive director of Law School Transparency, a nonprofit dedicated to making entry into the legal profession more transparent, affordable and fair.
McEntee, who’s also working on Building a Better Bar, analyzed data from a National Conference of Bar Examiners (NCBE) Testing Task Force that’s gathering feedback on the exam to inform design update recommendations.
In mid-August, NCBE released a report on Phase I of the project, which consisted of listening sessions with lawyers, judges, examiners and educators. Participant feedback included:
“…the MEE [Multistate Essay Exam] is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis).”
“The inconsistent passing scores implemented across states raise questions about the legitimacy of exam results; states need to agree on a definition of minimum competence.”
Phase II of the project will “gather current, empirical data on the knowledge, skills, abilities, other characteristics, and technologies that newly licensed lawyers use to accomplish the job tasks they perform.”
In addition, the NCBE Testing Task Force is conducting a practice analysis survey of the legal profession. The survey will provide a comprehensive, nationwide picture of the work that new lawyers do and the knowledge and skills needed to do that work. All lawyers are encouraged to participate.
The NCBE plans to issue recommendations on revising the exam’s design by the end of 2020.
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