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Home , Bar association, Bar examination

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Passing the : A Brief History of Bar Exam Standards Prof Margo Melli

Most graduates of the University of Wis- New invest substantial amounts consin School are spared one of the of time and money studying for them. It major rites of passage in the legal profes- is not surprising, therefore, that the legal sion-the bar exam. As we all know, profession has devoted considerable graduates of the two law schools located thought and energy to studying, review- in Wisconsin-The University of Wiscon- ing, and improving the process. sin and Marquette University This article describes briefly the devel- Law School-are not required to pass a opment of bar exam standards from a set bar exam to practice in Wisconsin. They of oral questions, administered and deter- are admitted on the basis of what is mined by a local court, to professionally known as the , Le., developed tests on a national level and graduation from law school, without the discusses the history of efforts to improve necessity of taking a bar exam. The Wis- the bar admission process with particular consin diploma privilege dates back to reference to the work of the National 1870 when the legislature authorized Conference of Bar Examiners. I am serv- automatic admission to the bar by virtue ing as Chair of the National Conference of graduation from the law department of Bar Examiners this year. I was elected of the University of Wisconsin. At that to the Board of Managers when I was time, the only requirement for admission serving as a member of the Wisconsin to practice law was that persons demon- Board of Professional Competence, the strate their ability and learning before a state agency that oversees bar admission circuit . There were no guidelines for the in Wisconsin. The for the and the requirement of Conference is the principal national graduation from the law department of organization concerned about the quality Margo Melli the University was an upgrading of the of bar exams and standards for admission educational standards. In 1931, the to the bar. diploma privilege was extended to In the 19th Century, bar admission include graduates of the Marquette standards were minimal. In fact, in the University Law School. wake of Jacksonian Democracy, there But, Wisconsin is the only American was a movement in many states to open to have such a program. In the bar to all "decent citizens"-regard- Because of its almost universal all other states, as a significant number less of training or ability. However, the acceptance as the main determi- of alumni know, entry into the legal pro- norm was an oral exam, administered fession requires the aspiring to under the jurisdiction of the local court nant of competence to practice pass a . In fact, in Wis- without any guidelines. Probably the best law, the bar examination is a consin, graduates of non-Wisconsin law known description of such an exam -and schools are required to take a bar exam one that clearly illustrated its shortcom- significant fact of professional to qualify for admission. In 1989, of the ings-was that conducted of a Jonathan life for lawyers. 920 lawyers admitted to practice in Wis- Birch by a bar examiner named Abraham consin, 176 were admitted on the basis Lincoln and described in Beveridge's Life of passing the bar exam. Four-hundred of Lincoln. Birch wanted to be admitted thirty-nine were admitted by diploma to the bar, but his examining district privilege and 205 on motion based on required at least two years apprentice- admission in another state followed by ship in the office of a practicing lawyer. the necessary period of practice there. Abraham Lincoln heard about Birch's Because of its almost universal accep- interest and called him in, explaining that tance as the main determinant of compe- there was no such rule in the Springfield tence to practice law, the bar examina- District. Lincoln then proceeded to ask tion is a significant fact of professional Birch some questions, such as what life for lawyers. Preparing for, taking, books he had read lately (which the and eventually passing the bar examina- examinee later said bore but a faint rela- tion is perhaps one of the most important tion to the ), told some sto- events in the life of a prospective lawyer. ries, and wrote a certificate to the court 4

recommending that Birch be admitted. wills" (five minute question). Instead the Beginning in 1880 with New Conference promoted the type of essay Hampshire, states began to create central question common to bar exams today, The possibility of a national bar boards of bar examiners with state-wide i.e.. a statement of hypothetical facts pre- jurisdiction. Wisconsin established such senting interrelated legal problems and exam had been explored intermit- a board in 1885. By 1898, state-wide requiring an answer in the form of a tently for about 30 years without boards had been established in 12 states short composition that analyzes the facts and by 1931 all states, except Indiana, and discusses and interprets the applica- being implemented, even though had such a board. Gradually, these state- ble law. it was endorsed by the National wide boards began conducting written In 1958 the NCBE, along with the ABA examinations, although oral exams were Section on and Admis- Conference of Bar Examiners and not unheard of in less populous jurisdic- sion to the Bar and the Association of the Section on Legal Education tions well into the 20th Century. American Law Schools, developed a Code Early in the 20th Century, the Ameri- of Recommended Standards for Bar and Admission to the Bar of the can began working to Examiners. Those Standards stressed the , mainly improve and strengthen the bar admis- need to give a written examination and sion process. Its Section on Legal Educa- emphasized that the exam questions because it raised fears that such a tion was concerned about the fact that should be hypothetical fact situations national exam would take the con- bar admission standards were often at an requiring essay answers. Standard 16 on extremely low level and varied greatly "Purpose of Examination" recommended trol of the admission process away from state to state. The ABA Section had that: "The bar examination should from state boards of bar examiners. been instrumental in the founding of the the applicant's ability to reason logically, Association of American Law Schools in to analyze accurately the problems pre- 1900 and it was interested in a similar sented to him, and to demonstrate a thor- national organization for bar examiners. ough knowledge of the fundamental prin- In 1931 the chairman of the Council of ciples of law and their application. The Second, increases in the numbers of the Section appointed a committee of bar examination should not be designed pri- applicants taking the bar exam had over examiners from several to marily for the purpose of testing informa- burdened the resources of many states investigate the idea of a national organi- tion, memory, or experience." and had led to what they considered zation of bar examiners. The National But it was not until the 1970s that the unacceptable delays in completing the Conference of Bar Examiners (NCBE) modern type bar exam began to take grading process. Jurisdictions were look- was founded that year. form. At that time, the Conference revo- ing for help with the increased number In the early years, the Conference lutionized bar examining by taking an of applicants. In just two decades, the concentrated on helping the states to entirely new approach. With a grant from number of applicants to the legal profes- upgrade their approach to the develop- the American Bar Foundation, it devel- sion almost quadrupled, from 16,000 in ment of a bar exam. State bar examiners oped a six hour, multiple-choice exam 1960 to over 58,000 in 1980. were discouraged from using questions that could be given by all examining Finally, a uniform test seemed possi- such as "What is evidence? List the jurisdictions and could be machine ble because advances in testing research kinds" (nine minutes were allotted for graded. It is known as the Multistate and construction had shown that it was answering the question); or "Define the Bar Exam or MBE. possible to use a multiple choice exam to term substantial compliance" (to be The development of such a test was test mastering of legal concepts. A multi- answered in six minutes); or "Give any brought about by several discrete factors. ple choice exam made the grading of a two principles or rules used by the courts In the first place, the idea of a uniform large number of tests in a short amount in the interpretation and construction of test given to applicants in all jurisdictions of time feasible because the tests could had been discussed as far back as the be machine graded. Several of the larger 1940's as a means of upgrading bar states had pioneered the idea with satis- admission standards. It was recognized factory results. In addition, most other that most other professions require their professions-medicine, pharmacy, members to meet minimum national accounting, veterinary medicine, nurs- State bar examiners were discour- standards. The possibility of a national ing, engineering and architecture-used aged from using questions such as bar exam had been explored intermit- multiple choice exams for their uni- tently for about 30 years without being form tests. "What is evidence? List the kinds" implemented, even though it was en- The Multistate Bar Examination cov- (nine minutes were allotted for dorsed by the National Conference of Bar ers six basic subject matter areas: consti- Examiners and the Section on Legal Edu- tutional law, contracts, and answering the question); or cation and Admission to the Bar of the procedure, evidence, real property and "Define the term substantial com- American Bar Association, mainly torts with a total of 200 multiple-choice because it raised fears that such a questions. It provides the state examining pliance" (to be answered in six national exam would take the control of authorities with the ability to cover a minutes); or "Give any two princi- the admission process away from state much wider range of topics than an essay boards of bar examiners. The Multistate exam can include, thus improving the ples or rules used by the courts in Bar Exam provided a uniform test but left validity of the exam. It offers them the the interpretation and construction the control up to the jurisdictions, who reliability of an objective test in contrast administered the exam as part of their to the subjectivity associated with the of wills" (five minute question). examination process, and set their own grading of an essay. Fifty American juris- passing grade. dictions, including 46 states, the District 5

territories, require that applicants to their tage of essay questions that have been bar have passed the MPRE. reviewed by two groups of experts with a These changes will give impetus Because the MPRE tests only one sub- specialty in the areas covered by the ject matter, ethics, it requires the exami- questions and pretested under conditions to the nationalization of bar exam- nee to master and attain a passing score similar to an actual bar exam. The Con- ining and to interest in national in that area. It does not allow the exami- ference hopes the jurisdictions will find nee the opportunity that the MBE or an this exam as helpful as the others have standards. essay exam gives with their multiple sub- been. ject matter coverage to have a better Several Wisconsin faculty members knowledge in other substantive areas have been involved in the efforts of the make up for lack of knowledge of the eth- National Conference of Bar Examiners to ics rules of the profession. upgrade bar examinations by participat- of Columbia, and three territories use the The most recent effort of the National ing in that organization's bar examination Conference of Bar Examiners in the area MBE for one full day of their bar exam. development process. Walter Raushen- of test development is the Multistate bush serves as a member of the Real In 1980, the National Conference of Bar Examiners made another contribu- Essay Exam or MEE. Like the MBE and Property Drafting Committee for the MPRE, the MEE is designed to improve tion to the bar exam process by introduc- MBE. Dan Bernstine serves as a member the quality of the bar examination pro- of the Torts Drafting Committee for the ing the Multistate Professional Responsi- cess. But, unlike those two tests, which MBE. Gordon Baldwin has served as a bility Exam or MPRE. This is a 50 brought a new testing concept, the multi- question two-hour multiple-choice exam member of the Draft- ple-choice question, to the bar examina- that is intended to measure both an appli- ing Committee for the MBE and as a tion, the MEE is an attempt to improve cant's awareness of the professional member of the Drafting Committee for responsibility considerations in a given the quality of what has become, in the the Multistate Essay Exam; I have served latter part of the 20th Century, a tradi- fact situation and the applicant's knowl- as chair of that Drafting Committee. tional staple of the bar examination, the edge of the ethical rules applicable to that This brief review of the development essay question. situation. The questions are designed so of bar exams illustrates the vast changes that the correct answer is the same under The Conference has a long history of that have occurred in the process in the concern with the difficult task of drafting last century. I can only speculate about both the American Bar Association Code good essay questions. Since its inception, what the next 100 years will bring, of Professional Responsibility and the the Conference has published articles in although there seems to be no interest American Bar Association Model Rules the Bar Examiner discussing the prob- in the Wisconsin "diploma privilege" of Professional Conduct. A small number lems connected with drafting essay ques- approach. However, there are changes in of the questions also test knowledge of tions and has sponsored panel discus- the legal profession that will probably the American Bar Association Code of sions and seminars on the subject. In affect state based bar exams: the increas- Judicial Conduct. 1952, the Conference began the Question ing practice of large law firms to become The MPRE was a response to interest Library, a clearinghouse of bar exam national institutions with offices in sev- by state bar examining boards in testing questions. That has served as a source of eral major cities and the mobility of applicants broadly on knowledge of eth- ideas for bar examiners drafting ques- young lawyers who may practice in two ics. Although many jurisdictions include tions for their own exam. Then in July or three states in their first five years of ethics issues in their essay examinations, 1988, the Conference began offering the practice. These changes will give impetus the essay format limits the coverage nar- Multistate Essay Exam or MEE that made to the nationalization of bar examining rowly. The 50 question MPRE allows available to states a complete half day of and to interest in national standards. much wider coverage. Unlike the MBE, testing in nine subject matter areas: civil Today, for example, 31 of the 50 jurisdic- the MPRE is administered by the procedure, constitutional law, contracts, tions that give the Multistate Bar Exam National Conference and is not a part of corporations, criminal law and proce- will accept a transfer of an MBE score any state's bar examination. Thirty-eight dure, evidence, real property, torts and from an exam taken in conjunction with American jurisdictions, including 35 wills, estates and trusts. another state bar exam. states, the District of Columbia and two This exam offers the states the advan-