Rethinking the Bar Exam

PITTSBURGH—Researching the law and investigating the facts for a senior attorney’s court case or negotiating and drafting preliminary terms of a contract for a client are a part of the regular routine for most newly licensed lawyers. Yet, American bar examinations fail to adequately evaluate these and many other basic skills required in the legal profession, says University of Pittsburgh Associate Professor of Legal Writing Ben Bratman. 

In his recent article, "Improving the 'Performance' of the Performance Test: The Key to Meaningful Bar Exam Reform," published by the University of Missouri-Kansas City Law Review, Bratman states that bar examinations administered by states and territories in the United States are ripe for growth and change. He argues that bar exams—which law school graduates must pass to become licensed attorneys—undervalue the testing of skill sets that lawyers use in daily practice and place too much emphasis on rote memorization of the law.  

“For the sake of clients, the public, and the profession, newly licensed lawyers need to be practically skilled, not
flush with knowledge of memorized law, and the best way for examining authorities to meet that need is to administer a bar exam that, to the maximum extent possible, tests on the ability to do things that lawyers do,” said Bratman. “Throughout my career as a law educator, I have become increasingly frustrated at how the bar exam fosters a culture of memorization in law school more than a culture of skill building.” 

In his article, Bratman recommends expanding the scope of the performance test—an already existing section on the majority of bar exams that assesses an examinee’s ability to manage legal tasks. For the performance test, bar examinees typically receive a packet of source materials and an assignment memo instructing them to draft a document, simulating a real-world assignment from a judge or a senior attorney. 

Despite its potential to enhance both bar exams and legal education, Bratman says the performance test has historically played the role of the proverbial third fiddle to the memorization-based multiple choice and essay sections on most bar examinations. While almost all bar jurisdictions in the nation require multiple choice and essay sections, nearly 20 percent of the country’s jurisdictions do not require a performance test. Many jurisdictions administer just one 90-minute performance test during 12 or more hours of bar examination testing taken over the course of two or three days. The majority of jurisdictions that do administer a performance test weigh its results relatively lowly in comparison to the memorization-based sections. Currently, only four jurisdictions in the nation—California, District of Columbia, Georgia, and Oregon—accord the performance test a weight greater than 20 percent of the overall exam score; six jurisdictions weigh the test at 10 percent or below. 

Bratman proposes making the performance test a standard requirement of every jurisdiction’s bar examination. He also suggests implementing at least six hours of performance testing into every bar exam as well as raising the weight of the performance test to as much as 60 percent of each bar examination’s overall score. 

In the article, Bratman states that the performance test should undergo a thorough review and revision. He says the performance test, as it exists today, evaluates only the same limited skills as when the test was first introduced to bar examinations in the early 1990s. Bratman calls upon national and state bar examination authorities to expand on the range of skill sets tested through the performance test, in much the same way that they periodically add substantive subjects to the memorization-based sections of the exam. 

“The latest bar exam reform, to be implemented this year, is the addition of another subject to the national multiple-choice test, but it should have been the addition of skills to the performance test because many critical lawyering skills are still going untested,” Bratman said. “This article is not proposing an overhaul or a radical restructuring of the bar exam. Rather, it is calling for bar examination authorities to find a proper balance between the performance test and the knowledge-based sections of the examination.” 

A member of Pitt’s law faculty since 2002, Bratman was one of the first law professors in the country to create a for-credit course focused on writing for the bar examination as part of a law school curriculum. Bratman also serves as the School of Law’s faculty liaison to the Pennsylvania Board of Law Examiners.  

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