How to Build a Better Bar Exam

As a licensing exam, the purpose of the bar exam is consumer protection–-ensuring that new lawyers have the minimum competencies required to practice law effectively. As critics point out, however, the exam, and particularly the multiple-choice question portion of the exam, has significant flaws because it assesses legal knowledge and analysis in an artificial and unrealistic context, and the closed-book format rewards the ability to memorize thousands of legal rules, a skill unrelated to law practice. This essay discusses how to improve the exam by changing its multiple-choice content and format. We use two law licensing exams to illustrate how bar examiners could utilize an open-book format and develop multiple-choice questions that assess a candidate’s ability to engage in legal reasoning and analysis without demanding unproductive memorization of so many detailed rules of law. The first example, the case file approach, is drawn from a 1983 California “Performance Test” in which test-takers received a case file and a series of multiple-choice questions testing the candidates’ ability to read, understand, and use cases to support their legal positions. The second example discusses the current licensing exam administered by The Law Society of Upper Canada (LSUC), an open-book multiple-choice exam that tests the use of doctrinal knowledge in the context of law practice. These two licensing exams demonstrate how we could re-structure the bar exam’s multiple-choice questions to measure legal analysis and reasoning skills as lawyers use those skills to represent clients. They also demonstrate that we can do a better job of testing some aspects of minimum competence, while still using a multiple-choice exam format