A Prominent Law Professor Thinks the MBE Needs To Go
Higher MBE Scores Likely Caused the Higher California Bar Exam Pass Rate
Despite the July 2019 California exam becoming infamous for the inadvertent release of essay subjects days before the exam, the gaffe by the California examiners likely had nothing to do with pass rate increases. Instead, the higher rate followed a nationwide trend of increased pass rates across states, which followed a simultaneous nationwide increase in the average Multistate/Multiple Choice (MBE) score. So, the most likely conclusion is that students scoring better on the MBE caused more students to pass the exam. This is actually not surprising because the California Bar Exam pass rate was down in prior years when MBE scores were down. As such, the bar exam pass rate seems to be heavily dependent on fluctuating MBE scores.
Why did the MBE scores fluctuate? Did students suddenly get smarter and/or more qualified between July 2018 and July 2019 to merit higher MBE scores and consequently higher California Bar Exam pass rates? Unlikely. What seems more likely is that, for whatever reason, the MBE scaling was different this time around, leading to higher overall scores.
As an aside, the essay scores we have seen at BarEssays for the July 19 exam seem no better or worse than usual. BarEssays recently posted more than 100 essays from the July 2019 exam to the database, including high scoring and low scoring examples to every July 2019 essay and the PT. We have seen score reports from hundreds of students from the July 2019 exam. Although this is circumstantial evidence, the essay scores are remarkably consistent with prior exams, further leading us to believe that higher MBE scores were responsible for the higher pass rate.
It’s Time for the California Bar Examiners to Rethink the MBE
Why does California allow fluctuations in the MBE to determine its pass rate? What is the point of the MBE to begin with? It seems that, out of all the sections of the exam, the MBE is – by far – the least applicable to the practice of law. Regardless of your legal practice area, you will never encounter a problem and receive four answer choices to deduce the best of the four.
In a May 23, 2018 Letter (subscription required) to the Editor of the Daily Journal entitled “Time for the State Bar to Ditch the MBE,” Professor Ira Shafirof of Southwestern Law School agreed, writing:
Any lawyer who has practiced more than six months knows that the MBE . . . is merely a severely timed reading comprehension test that all too often tests not fundamental legal principles, but doctrines that more and more are coming from footnotes in hornbooks. In almost 40 years of practice, I have never had to read a fact pattern in 1.8 minutes and then choose the “best answer” — and do this 100 times over a three-hour period (take a 90- minute lunch break, and do it all over again in the afternoon).
. . .
It is time to dump the MBE. While the written part (essays and performance test) is certainly not an ideal testing mechanism either, at least applicants are forced to create solutions by writing logical and coherent answers, which is what lawyers do all the time in some fashion. On the other hand, I don’t think too many judges regularly ask lawyers, “Counsel, is it A, B, C, or D?”
Is Professor Shafirof right? He certainly has a number of valid points. To add to the argument in favor of ditching the MBE, we have a number of additional points to add:
- No part of practicing law is a multiple choice exam. Regardless of your practice area, you will never ever receive four answer choices and get to choose the best one. This will never happen.
- The practice of law is largely the practice of writing along with other advocacy skills such as oral argument. The MBE does not test your written skills. Nor does it test your oral advocacy skills.
- Students focus a large amount of time during the bar exam study period learning the tricks and psychology of a multiple choice exam, instead of practicing writing, which they should be doing instead.
- The MBE tests arcane areas of law that are not relevant to the practice of law. Can you remember the common law elements of burglary?
- Law school exams are rarely (if ever) multiple choice, likely because law schools and professors recognize that the practice of law is not multiple choice. Yet after three years of written exams, students are forced to switch gears.
- Many students have basic problems with the nature and timing of multiple choice tests even though they are excellent writers and will become incredible attorneys.
- California is allowing fluctuations in the MBE to determine its pass rate. Whenever average MBE scores go up (such as in July 2019) the pass rate follows. California alone should have full control over the pass rate.
- The California Bar Examiners likely pay a ton of money to license the MBE. It would seem beneficial to them, both practically and monetarily, to have two days of written exam and not pay this fee. Ideally, cost savings should be passed down to students (wishful thinking – I know).
- Yes, the MBE is an “objective” exam, compared to the inherent subjectivity of essay grading, but so what? That is not a valid argument to test skills that are not relevant to practicing law. The LSAT was “objective” too – should we just retest that as part of the bar exam?
- Currently there is a massive debate over California’s high “cut score” to pass the bar exam. By “cut score” the debate entirely focuses on the MBE score that California requires, which is higher than other states. Why not end the debate by removing the MBE altogether?
If California removed the MBE, would it be alone? No – and not even within California. Let me explain. 49 out of 50 states currently require the MBE (Louisiana does not require the MBE). However, California also does not require the MBE for attorneys admitted in another jurisdiction who have practiced for at least 5 years.
An attorney from Louisiana who never took the MBE can become licensed in California without ever taking the MBE. Or, an attorney from another jurisdiction who scored much lower on the MBE than required in California can get admitted without retaking the MBE. No matter! As long as you have been practicing 5 years, you do not need to take the MBE in California, only the written portion of the exam.
Why doesn’t California require the MBE for experienced attorneys? Presumably because the examiners believe that a multiple choice exam is not relevant for these attorneys. So then why is it relevant for new graduates? The bar examiners should make a determination that written skills are paramount for both new graduates and experienced attorneys.
What do you think? Is it time for the examiners to rethink the multiple choice section of the California Bar Exam?