Legislation & Regulation and the Bar Exam

Most readers of this blog will be familiar with the performance test (PT), a portion of the bar exam in 42 states and D.C. (Forty states use the Multistate Performance Test (MPT); examiners in Pennsylvania and California write and administer their own PT.) For states using the Uniform Bar Exam (UBE), the MPT counts for 20 percent of the overall exam score.

I wrote about the performance test previously here. I extolled its virtue as the only part of the exam that exclusively tests lawyering skills, requiring zero memorization of legal rules; and I bemoaned its status as the ugly step-child of the bar exam that gets next to no attention in conversations about exam reform.

Over time, bar examiners have concluded that certain substantive subjects have grown or lessened in importance to law practice such that they have added subjects to the MBE (e.g., Federal Civil Procedure) or dropped subjects from essays (e.g., Secured Transactions, in some jurisdictions). Why not the same with skills on the PT? Is it not fair to say, for example, that a greater percentage of beginning lawyers today work in fields dominated by regulations than did in 1993 when the MPT was born? Yet the vast majority of PTs to this day test the ability to reason from cases, not from statutes or regulations without the aid of cases.

The anti-regulation bent of the current administration notwithstanding, we live in a heavily regulatory state. Lawyers in numerous specialty areas, including health care law and environmental law; lawyers working for government agencies; or lawyers serving as in-house compliance officers—among the most important skill sets for all of them are reading, interpreting and applying statutes and regulations. (Compliance, by the way, has been a growing field, and positions in compliance are J.D. preferred jobs increasingly being filled by newly licensed lawyers.) Many law schools have responded to this reality by adding a 1L course on legislation and regulation to provide law students the needed foundation for practicing law in our heavily regulatory state. (A running list, accessible from here, indicates that about 30 law schools are offering a course of this nature in the first year.)

In reviewing summaries of the last 28 MPT items (covering the last 14 exams back to February 2010), I found only one among the 28 that provided only statutes and regulations and no cases as part of its law library. Typically, PTs presenting issues of statutory application have both statutes and cases in the library, and the cases provide the statutory interpretation needed to answer the issue posed. That’s still common law reasoning—a very important skill, to be sure, but not very helpful for a lawyer when the only applicable law is a statute or a regulation.

All of the above helps to explain how pleasantly surprised I was to see a purely statutory issue on the February 2017 performance test on the Pennsylvania Bar Exam. The assigned task was to write a memorandum analyzing and supporting the client’s position on three legal issues raised by opposing counsel in a motor vehicle accident. One of the issues was whether a driver had violated the state’s law banning texting while driving. The text of the law appeared in the materials, and applicants had to dissect its language and apply it to the facts—all without the aid of cases in the materials, each of which was relevant only to other issues. This is basic stuff, but exactly the kind of basic stuff that beginning lawyers must be able to do well.

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3 Responses

  1. I couldn’t agree more. This is exactly what the bar needs–more testing on what lawyers actually do. Statutory analysis is an essential for all lawyers.

  2. Thanks for this informative post, Ben. I think we should all send links to our local bar committees, courts and the NCBE to encourage a better bar exam!

    • Ben Bratman
      Professor of Legal Writing
      University of Pittsburgh School of Law
      Beb9@pitt.edu
      412 383 7671

      From: Best Practices for Legal Education
      Reply-To: “comment+edvotd96m7ht1j7qkuftnq-3w2@comment.wordpress.com”
      Date: Tuesday, March 21, 2017 at 11:42 AM
      To: “Bratman, Ben”
      Subject: [Best Practices for Legal Education] Comment: “Legislation & Regulation and the Bar Exam”

      Thanks, Mary. The NCBE is the major player here by far because even most of the non-UBE states that administer a performance test use the NCBE’s MPT. As I have observed before, the NCBE considers and implements change at a glacial pace. (That’s pre-global warming “glacial.”) And, apparently, they think the MPT is just fine as it is. To be fair, since the last five years’ worth of MPTs are not available except for purchase, I reviewed only the summaries of the questions. But those summaries do support a heavy bias in favor of testing common law reasoning only.

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