Ben Bratman is an Associate Professor at University of Pittsburgh School of Law, where he teaches legal analysis and writing. He also serves as faculty advisor to the Moot Court Board and as faculty consultant to the Director of Academic Success and Bar Exam Services. For more information on Professor Bratman’s work visit his Pitt Law faculty page.
As law schools continue to embrace recent ABA mandates to bring experiential learning into the classroom, Professor Ben Bratman, of the University of Pittsburgh School of Law, questions whether the current Bar Exam is adequately testing students’ real-world lawyering skills. In a recent Wall Street Journal Op-ed entitled, “Reforming the Bar Exam to Produce Better Lawyers,” he explores the newest changes to the Bar Exam. According to Bratman, the current Bar Exam structure and recent reforms, which are rooted in multiple-choice questions, do not adequately address the need for greater testing of students’ practice-based skills. Bratman argues that the Bar could better respond to the experiential learning law schools are introducing to their curricula by putting more emphasis on performance based testing.
Bratman, who established Bar Exam preparation as a separate discipline at Pitt Law, took the time to explain the recent reforms and his take on how the Bar could be improved. At this point, Bratman says the question remains whether Bar Examiners will be pressured into changing the exam in response to law schools’ new focus on practice-based learning, or whether they will introduce more performance-based test reforms to help lead the way.
The National Conference of Bar Examiners, which produces the Multistate Bar Exam, known as the MBE, decided a few years back that it was going to add federal civil procedure as a seventh subject on the exam. Since the MBE is a portion of the Bar in just about every U.S. jurisdiction that means that just about every state’s Bar Exam will have the change, and that was instituted with the February 2015 exam. It means a couple of things for students. One is that to the extent that federal civil procedure was not being tested on the state essays, which was to a mixed extent around the country before this change, it’s new material for students to digest. This change also means more subject area in which you have to deal with multiple-choice test taking, which has its purposes but is also a considerable challenge for many students. It’s also a source of much criticism because, to say it very literally, practicing lawyers don’t answer multiple-choice questions of course.
There is a lot that goes on in a law student’s education that I think prepares them, I hope to a sufficient extent, to think like a lawyer. My point is that the Bar Exam is not really helping enough in that process. Though answering these multiple-choice questions does require certain skills of reading carefully, analyzing, and applying law to facts - what it does more than any of those things, from my perspective, is it requires students to memorize and then pull from memory principles of law. In some cases these are principles of law rarely used by lawyers, especially beginning lawyers in most fields, and so it’s sort of a mis-prioritization in my view to increase the scope of and make more important, score wise, the one part of the exam that puts the most emphasis on memorization as opposed to actually engaging in lawyering skills.
Have there been any positive Bar Exam reforms in the past that you think the Bar should move back towards?
One specific reform that happened that was good is the performance test. This is the one part of the exam, currently in about seventy-five to eighty percent of states, that requires no memorization or recall of particular law. It’s essentially a closed book lawyering exercise providing a library of legal authorities, a set of materials from which to gather the facts, and then an assignment to complete something written applying the law to the facts. So the particular subject area doesn’t matter because it’s a skills test exclusively. Performance tests came to the Bar Exam nationally in the mid 1990s and they have pretty much been the same ever since. They don’t test a lot of skills, they just test the core legal analysis skills, and that’s great. But, it seems to me that about 20 years have gone by and it’s time to sort of think more deeply about how we can test more performance-based skills and assess the skills that are being tested better.
Are many other law professors pushing for similar Bar Exam reforms? What do you think the next Bar reforms should be?
There is an enormous amount of literature out there - articles that have been written by not just law professors but also practitioners. It’s a chief criticism among many people that the Bar Exam is too focused on memorization. There are other criticisms of the Bar as well, and a whole variety of suggestions about what to do about it. My opinion would be to ratchet up the performance test portion of the exam, both in the sense of expanding the skill sets that it is seeking to test and also making it a larger proportion of the exam as far as the score goes.
Do the reforms you are advocating for go hand in hand with the recent move towards experiential learning in the classroom?
They do. Really what that question gets to is sort of this ultimate dichotomy of - should the Bar Exam respond to what the law schools are teaching or should the Bar Exam try to lead the way a little bit and push the law schools more. I think in reality we see a little bit of both going on, but it seems to me that if the Bar Exam would really push skills testing you would see even more focus in the law schools, logically enough, on practical skills training. But by the same token, this increased focus on experiential learning in law schools, which is a reality in part because of the ABA’s new requirements regarding professional skills courses, should also serve as an incentive to the Bar Examiners to make changes like this.
I think that the reform should push the Bar Examiners to make changes along the lines of what I am suggesting. Regrettably, I don’t know that it will. I think Bar Examiners are looking for very sure steps when they make a change, not tentative steps where they might be creating a scenario where there are inequities between law schools. But, what I am hoping is that Bar Examiners will eventually appreciate that, even in a small way, the performance test can be a more meaningful part of the Bar Exam. Right now the performance test, the part that really tests what lawyers are actually doing, is not even on the Bar Exam in a minority of states and it’s a very small percentage of the score in the states where it is used.
Are there opportunities during the year for law schools and practitioners to get involved in Bar Exam developments?
The National Conference of Bar Examiners definitely has made an effort to reach out to the law schools in a variety of ways, including holding conferences where they invite academics from law schools to attend. Meetings happen on national and state levels. I think the communication that’s going on is more from the Bar Examiners to the law professors. There’s an opportunity to exchange thoughts and suggestions, and the Bar Examiners do listen. However, they are somewhat conservative and they tend to defend the exam as it is. But the lines of communication are there.
Do you think there is more work to be done to fully incorporate practice-based learning into law schools?
There is more progress to be made, but that’s not to take away from all of the progress that’s already been made. Progress has not just been, in some instances, by requiring skills-based or experiential learning. It’s also been about creating an atmosphere in legal education both for students and for faculty where people recognize its importance, because in the past practice-based learning was kind of second fiddle to the more traditional doctrinal coursework. So there’s a lot of progress that has been made, but I think there’s a lot more and I think it’s going to take a while.
I would say with your course selection throughout law school, even as a first year, you should be thinking about the Bar Exam and taking courses that will better prepare you for it. Make sure you know what subjects are tested and plot out a four-semester plan making sure you take all or almost all of them. Then once the exam comes it’s about taking it very seriously and it’s about devoting the two to three months you need before the exam to prep as if it were a full time job.