Wednesday, May 31, 2017

Is It Time For a Legal Research Component on the Bar Exam?

The Wall Street Journal (sub req'd) is reporting on pushback against difficult bar exams (particularly California's bar).

One camp of law-industry watchers blames the drop in passing rates on the declining credentials of incoming classes. Others point to changing study habits of so-called millennials, who grew up with the ability to find information at their fingertips and aren't accustomed to the intensive memorization and writing skills needed to pass a bar exam. 

The article ultimately asks: Does the exam even test what incoming lawyers need to know?

It seems that, based on what a lawyer actually does, the test should be about spotting legal issues, research, and proper legal analysis.
  • A law school education prepares students to spot the multitude of legal issues to
  • Explore those issues using sound (efficient and effective) legal research methods
  • To do a proper legal analysis of the various issues (or the call of the question, as it were) with cites to relevant codified law and case precedent. 
As a very basic example, if the test-taker spots a potential negligence issue, why should the test taker also have to memorize all of the elements (and sub-elements) of negligence? In practice, lawyers research the elements. 

If the test taker was taught to perform effective legal research, the test taker would know how to easily look up the elements of negligence in any database. For example, all that the test taker has to do is set the jurisdiction in Westlaw and type: what are the elements of negligence in the search bar. And the following answer is retrieved: 

“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” 
Quinto v. Woodward Detroit CVS, LLC
Court of Appeals of Michigan.April 29, 2014305 Mich.App. 73850 N.W.2d 642311213
*Let's ignore, for a moment, that this might not be the "best" case to cite.

The test taker then uses cases retrieved through the legal research process to do a proper legal analysis (IRAC or CREAC). 

While this would require reconceptualizing the bar exam, it would more fully represent what a lawyer actually does in practice. It would also adjust the test to the digital age where the current crop of law students grew up with the ability to find (and USE?) information at their fingertips. 

1 comment:

  1. As someone who has practiced, moved, and then needed to take another bar exam in order to be licensed, I will say that the bar exam definitely does not test what is needed in practice. A reconceptualization (or, my preference, an elimination) of the bar exam is required, and I think legal research is a critical component that must be added during that process.

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