Appendix H: Results of TDC Post-Meeting 2 Survey

Would you endorse candidates being able to take a component of the bar exam after completing 60 hours of law school? If there was an option for candidates to take a component of the bar exam after completing 60 hours of law school, which component do you think should be available? Comments (optional)
No Doctrinal Law I remain worried that the 60-hour option will fundamentally change law school.  Maybe it could use a shake-up, but I am not sure this is the one that is necessary.
Yes Doctrinal Law I actually don’t mind either component being available early. However, as an administrator, I would qualify that comment by saying that I support either being offered early if the components would be offered at Pearson Vue—or similar testing—centers. I think if there is a component that is going to be administered by the jurisdictions—whether it be in-person or remote—the jurisdictions are not in a great position to test applicants who may or may not otherwise qualify for admission (for example, it is a drain on our resources to administer an exam to someone who may not graduate law school). If I have to pick one or the other to be tested early, I would actually prefer the doctrinal law, because I think it is more important to make sure that the skills are present for the applicant to be a minimally competent lawyer as close to licensure as possible.
Yes Doctrinal Law
Yes Doctrinal Law I personally think it should be both. If it is only one, I can see good reasons in support of both options. For doctrinal, testing during law school does the testing closer in time to when students take the courses. On the other hand, if we move doctrinal testing to modes that are graded by machine, the time-to-license for successful takers would be shorter than if human-graded skills testing was done after law school. I would say that grading time counsels towards doing skills during law school. Also, the skills testing likely would require less focused preparation time immediately before the exam, so preparing for it during the school year would not be disruptive.

I recognize that some of my Dean colleagues would disagree, but I think that the potential for disruption to the law school curriculum that would result from having doctrinal testing is overstated for most law schools. My colleagues who tend to be concerned about doctrinal testing during law school uniformly come from elite schools that don’t have to be very concerned about the bar exam in its current iteration. It is hard to imagine for me to see how they would need to be very concerned about the bar in any other iteration. For the vast majority of law schools, the bar exam already dictates our curriculum. It determines what courses we require and how we test our students for bar-tested courses. Moving the testing up so that it occurs during law school would lead to the exam having less curricular impact at most schools. It also would help us better prepare our students for the exam while at the same time freeing us to focus more energy on preparing our students for practice.

Finally, I’d note that I think this is one of the most important issues we are considering, and I was a bit uncomfortable about how our discussion was rushed at the end.

Yes Doctrinal Law Would support a student being allowed to choose either component to take during law school—or to take both during law school.
Yes Doctrinal Law Lawyering skills should not be tested during law school as such skills are not FULLY developed until much later in their law education / legal training. Thank you.
No Doctrinal Law I would favor law students being able to sit for the full bar exam after completing five semesters of law school, which included at least one class in bar preparation. I do not see any benefit to sitting for part of the exam at the end of second year and it would interfere with clerking opportunities. Sitting for the exam after 5 semesters would not interfere with clerkships.
No Lawyering Skills I think there is a sharp divide on this issue between top 100 law schools and the other 100 law schools (we saw that play out on our call). Unfortunately, the current plan caters to the other 100 law schools and puts the top 100 schools in an untenable position. Therefore, I think you will see strong opposition from those schools. To be honest, I would encourage our state to abandon the doctrinal piece altogether and consider a state only solution (as we know COVID is causing states to create their own test)—that’s how strongly I feel about this. Also, law schools would lobby states to ban students from taking the doctrine test prior to graduation—likely creating a fractured system. As a compromise, I strongly urge you to consider this—allowing students to take EITHER the doctrine or lawyering skills tests after 60 credits and the other after graduation. That way, schools could decide if they are a school that promotes the lawyering skills first or the doctrine test first. Schools could make the choice and adopt to a model that best fits with their education plan, rather than promoting a one size fits all model. Also, in that kind of system, neither side would have a perceived advantage (i.e. students from schools at both groups get to finish a portion after 60 credits). Leaving it as it is and just saying “it’s optional” isn’t fair or helpful. Schools will be under enormous pressure to offer “the option” because the perks will be too great. I’ve fought back attempts to adopt an “early bar” in [two jurisdictions], and the breakdown was always the same (the highest ranked law schools were against the early bar and the other schools supported the early bar.) That’s because some schools already do a lot of specific bar instruction in their curriculum (which is a good thing for their students) so they want the bar early and want to work with students while they are students on passing the test vs. national and well-placed regional law schools that do not have curriculums that are centered around the test and have no interest in teaching to the test (which is a good thing for their students). I firmly believe the current proposal is a mistake. I can’t support it.
No Doctrinal Law There is some benefit to retaining this knowledge at a time frame more near to licensing.
Yes Doctrinal Law Testing candidates on doctrinal law while they are still in law school tests candidates closer in time to when they studied doctrinal law in law school, so candidates could spend less time and resources cramming for a post-law school bar exam. Reducing emphasis on personal resources (how much time candidates can take off of work to study after law school, how much money they can spend on bar prep) could increase the effectiveness of the exam’s testing minimum competence.

Also, reducing emphasis on personal resources may lead to more diversity in the profession.

Testing doctrinal law during law school may also lead to a better connection between what is tested on the exam and what law schools teach. Some participants were concerned that the exam would dictate what professors teach, but it could also work the other way around—law schools could become more interested in what giving input on what is tested on the exam.

Also, depending on the timing of the lawyering skills exam, successful candidates could get licensed months earlier than they do now.

Yes Doctrinal Law Students need to practice the skills more than 60 hours in law school to be competent. Needs to wait until after graduation. The doctrinal law is mostly 1L and 2L courses. To me, the whole point of taking it early is to take it close in time to when they have the courses. It was the deans of top tier law schools that were the ONLY ones complaining about the allegedly huge impact such a system would have on legal education. The rest of us did not feel that way at all. The reason is their Contracts classes are not really Contracts classes, but Law and Economics or whatever the professor’s fancy is. Our classes really are Contracts classes.

Those deans get the heat because students complain they have to get what they need from a commercial provider. Yet their students don’t usually struggle with the bar exam. Commercial providers will quickly find a way to deliver a prep course when it’s after 60 hours. [All Saturdays. 3 weeks of prep. etc.  If the bar doesn’t test as deep, their lectures won’t need to be as long.] Law schools won’t have to do it, if they don’t want to. And, it sure wouldn’t be a six hour course. I wanted to laugh out loud at that. It showed how little those deans understood what the commercial providers currently do. A law school could do it with a regular 3 hour course easily. Their arguments were misplaced. [One dean advocated for] picking and choosing modules, but that missed the point entirely that this is a generalist license. I don’t mind modules, but not pick and choose. Finish all four modules, etc.

More non-top tier law schools have expanded beyond the fall-start only model of legal education as well. We have students that start in January and May. They will have 60 hours done at various times. Whatever design is the finished product, we need more than just two shots at the after 60 hours exam during a calendar year. Then, as an afterthought, we will need lots and lots of examples of the case studies-style questions, short answer style, true-false, whatever you come up with or those first few groups will be incredibly frustrated and we’ll go nuts. For example, the 10 Civil Procedure questions that were released before Civil Procedure was added as an MBE subject was just not enough. It needed to be double that at least. Hope that helps!

No Lawyering Skills
No Doctrinal Law I still do not feel they should take part of the bar exam while in Law School.
Yes Doctrinal Law Lawyering skills and written expression take longer to develop and they will be better equipped to do that after completing experiential learning that takes place later in their tenure. Few people complete sufficient skills courses within 60 hours.
No Doctrinal Law If there is to be an earlier component, which I am not necessarily opposed to, I would prefer a test of fewer doctrinal law subjects after 30 hours. I am afraid that our final product is a test “designed by committee,” which I guess is inevitable.
Yes Doctrinal Law Skills presuppose a basic understanding of doctrine so a properly assessed skills test should also incidentally measure a grounding in doctrinal knowledge. The step process of licensure examination would only work in a changing legal education landscape if knowledge was tested before skill.
Yes Doctrinal Law They are closer to learning the doctrinal law if tested after 60 hours and most students gain lawyering skills between year two and three.
No Lawyering Skills I understand the desire to move part of the bar exam into the time of a student’s studies. However, as was reflected in our discussion during the first set of meetings (I was not able to attend the meeting earlier this week, unfortunately), I believe there was a clear dividing line between those schools in the top half of the law school rankings and those ranking below that line. For the schools in the bottom half of the rankings, teaching to the bar exam is important for their students and, therefore, for them. Their doctrinal courses, and the required timing of those courses, are often tied closely to the content of the bar exam and the teaching within those courses is also tied closely to the content-coverage on the bar exam. They teach courses that are specifically bar-prep courses, in addition.
Schools ranked in the top 100, on the other hand, see their educational mission very differently. For these schools, and for their students, legal education is geared to the long career of attorneys, providing methods and tools that are not covered by the bar exam. This is both possible and acceptable to students with a proven record of high achievement on tests. This is an essential aspect of legal education for these schools and these students and, indeed, it is essential to the practice of law in “real life” after and beyond the bar exam. I worry tremendously about moving the option to take any portion of the doctrinal law bar exam during student’s years of law school study. One might say that each student having the option provides flexibility. But that seems like a useful ruse rather than a realistic view of how this would play out. Even at these schools, potential short-term benefits students might (mistakenly) seek in taking the doctrinal portions of the bar exam would put pressure on the curricular offerings of every school. And, within those schools, it would place tremendous pressure on instructors of each course on the bar exam to alter their curricular coverage and pedagogical approach to the course. Students who wanted to take the doctrinal portion of the bar exam would lobby very hard, would provide negative reviews of their courses and instructors, would make deans’ lives very difficult, if they did not think the school was doing enough to prepare them to exercise their “option” to take the doctrinal portion of the bar exam during law school.I am aware of deans’ efforts at many schools in the top 100 schools to stave off early bar exams for precisely these reasons. The detriment would be too great to their schools and to their students. They, and I, have believed that the detriment would be great to the profession; the philosophical, theoretical, historical, humanistic, and scientific tools that are taught in our classrooms would be diminished. These are tools and ways of thinking that are not tested on the bar exam. They are taught in our classrooms in preparation for our students’ long and wonderful careers. And they are tools and modes of thinking that affect the law and the most important legal issues of our day.In addition to the above, I strongly believe that this option will harm first generation students. Even at the lower-ranked schools, those students will be competing against students who have an inter-generational, life-long familiarity—or even intimacy—with the law. How a student can hope to level-up to that advantage after just 60 credits is mystifying to me. I personally could not have done that and would have felt that the bar exam was an even narrower gate than I thought it to be as I prepared for the bar exam as a first generation law graduate. I cannot support a plan that would affect legal education so profoundly and that could have a greater potential to keep first generation lawyers out of the profession. I believe an “option” to take the doctrinal portion of the bar exam would do that. I also believe schools in the top 100 would react strongly, and negatively, to such a design.*Perhaps (though I am not fully convinced of this) a middle ground would be for individual states or individual schools to decide whether their students would be eligible to take the doctrinal portion of the bar exam or the skills portion, but not both. This would give schools that ability to define their identity and educational mission at the time students apply for admission.
Yes Doctrinal Law
Yes Doctrinal Law
Yes Lawyering Skills Many thanks for the follow up. However, this is too complicated—and too important—an issue to be handled appropriately via a two question survey. Redesigning the bar in a way that permits part of it to be taken in law school risks having major incentive effects on students and the choices they make about what to take within law school, and how to structure their legal education, as well as incentives on how law schools themselves conduct their education. That should be something that the NCBE truly cares about. The NCBE should—indeed must!—see itself as a contributing part of the entire legal education ecosystem. It should care deeply about thinking through that component and its effects. I recognize that law schools are not all similarly situated—and indeed, in this meeting, we saw and heard a variety of perspectives even from law deans, and we did not all agree. That’s fine, of course—and not surprising. My point is bigger. The bar exam does not stand alone as a location for production of qualified attorneys, to protect the public and to support our system of justice. It operates on top of a system of legal education also focused on the same. The bar exam should be designed in a way that improves legal education and the development of talent. That should be a criteria that matters, and indeed a focus. I confess I was disappointed at the extent to which that perspectives seemed somewhat sidelined in our conversations about test design. Substantively, I am open to the notion of a component during law school, but only if it is not going to harm the law school experience. And though I have my own instincts about that question, which I shared, I also recognize that I don’t fully know enough to answer that adequately at this point—and neither do the other people who were in the room. And yet that question ought to be absolutely central to this evaluation and this assessment. So the NCBE should engage, in my view, in a more significant effort to assess THIS question before it can responsibly assess whether the exam should include a piece that is tested during law school, and if so, which one.