Validity, Competence, and the Bar Exam

Deborah Jones Merritt, Ohio State University, Moritz College of Law

Abstract

The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.

This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence. The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact. How can we defend a racial disparity if our exam does not properly track the knowledge, skills, and judgment that new lawyers use in practice?

We can’t. In the language of psychometricians, our bar exam lacks “validity.” We haven’t shown that the exam measures the quality (minimal competence to practice law) that we want to measure. On the contrary, growing evidence suggests that our exam is invalid: the knowledge and skills tested by the exam vary too greatly from the ones clients require from their lawyers.

We cannot ignore the bar exam’s invalidity any longer. Every legal educator should care about this issue, no matter how many of her students pass or fail the exam. The bar exam defines the baseline of our profession. If the exam tests the wrong things, we have a professional obligation to change it.