Is it Time to Rework the Bar Exam?

I think most of us here are in agreement that, of all the AtL columnists over the years, Kyle McEntee is among the more credible.  He's got a new column on AtL today discussing some pretty harsh internal criticism of the Bar Exam by the National Conference of Bar Examiners (i.e. the group responsible for the MPRE, the multiple-choice section of the Bar Exam, and the essays and performance exams used in the Uniform Bar Exam).  Among the critiques are:

• The exam tests both too much and too little. That is, it should emphasize more lawyering skills and less subject matter knowledge. 

• The exam should utilize more writing, less multiple-choice, and additional methods like simulation.

• Jurisdictions should consider breaking the exam into different parts over more than just a few days.

• “The MEE is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis).

• The inconsistent passing scores implemented across states raise questions about the legitimacy of exam results; states need to agree on a definition of minimum competence.

• “The MBE tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to know and are not reflective of minimum competence; the MBE tests too deeply on subjects; memorizing black-letter law for the MBE to answer multiple-choice questions (MCQs) does not mimic real practice because lawyers would look up the law and not rely only on memory in representing clients; too much focus on memorization; the MBE tests only memorization and no skills; the MBE questions are full of red herrings and intentionally tricky”

• “MCQs are not realistic or an effective way to test what lawyers do; if retaining MCQs for the MBE, reduce the number of questions or increase the amount of time allowed”

I agree with all of the above, especially the questions concerning the utility of the multiple-choice Multistate Bar Exam.  It's been more than twelve years since I sat for the Bar, but I recall the questions and subject matter were oddly focused on areas of the law that few practitioners need to know (i.e. tests for religious displays on public property, prayer in schools, the rule against perpetuities, and adverse possession).

That said, I disagree with the implication that a fast-paced, timed multiple choice test has no place in the Bar Exam because there are a few topics that attorneys do need to know off the top of their head and do not have the opportunity to research.  Specifically, I'm thinking of the rules of evidence (and, yes, I'm aware that this applies only to trial attorneys).  When in trial, a competent attorney must have a command of the rules of evidence.  You don't get a recess to research the applicable rules of evidence and rework your questions if the opposing attorney makes a valid objection.  Similarly, you need to know the rules yourself to keep the other side in check.  Objections not timely asserted at trial are waived for purposes of appeal, so there is literally no time to consult a rule book.  Unless and until we break out a law license into "trial attorneys" and "non-trial attorneys," a minimally-competent attorney must understand the evidence code.

Commenteriat, how do you feel about the MBE and how would you improve the Bar Exam?