Improving the Performance of the Performance Test: The Key to Meaningful Bar Exam Reform

If there are going to be bar exams in the United States — and there are, for the foreseeable future — then the lingering question is how to improve them to better serve the goal of evaluating minimum competence. The bar exam is roundly and rightly criticized by academics and practitioners as disconnected from the actual functions that lawyers perform. The focus of the exam, critics say, is too much on knowledge and memorization of law. That focus is exacerbated by the recent addition of a seventh substantive subject, Civil Procedure, to the Multistate Bar Examination (MBE). The path to meaningful bar exam reform does not run through the MBE or the essay examination; it runs through the performance test. The Multistate Performance Test (MPT) or a comparable state-produced version appears on the bar exam in nearly 80 percent of U.S. jurisdictions. It evaluates real-world lawyering skills that simply cannot be tested to anywhere near the same extent, if at all, by the MBE or essay examination, each of which requires knowledge of extensive doctrinal content. Designed to evaluate several of the fundamental lawyering skills identified in the ground breaking MacCrate Report, the performance test had great potential. But in significant ways it has not yet fulfilled that potential. A review of MPT questions administered to date reveals a narrow and stagnant testing vehicle that is not adequately evaluating the range of competencies central to the work of today’s newly licensed lawyer. The MPT has even failed to test on some of the skill sets listed within its published scope of coverage. Moreover, the performance test still remains the smallest part of the bar exam, relegated to third fiddle behind the MBE and essay examination. Especially in light of empirical evidence that competent performance of many specific lawyering skills is more important to the work of beginning lawyers than knowledge of law, bar examiners should reinvigorate the performance test. Improved and expanded performance test questions could more thoroughly evaluate a wider array of the skills that bar applicants need upon entry to the profession. In addition, more performance test questions could be administered on each bar exam, and, notwithstanding psychometric limitations, examiners could increase the test’s scoring weight relative to that of the other exam components. It is through these reforms that the bar exam can become an instrument that truly evaluates competency to practice law more than knowledge of law