The Michigan Bar Exam — Does it Still Measure “Minimum Competency”?

The Michigan Bar Exam — Does it Still Measure “Minimum Competency”?

The Michigan bar exam is supposed to test whether an examinee has the “minimum competency” necessary to practice law in Michigan. This sounds like a low bar. However, recent bar exams reveal that the bar exam is not, in fact, assessing whether one has minimum competency. Instead, the bar exam tests issues that are arcane, nuanced, and not covered by bar review courses or law school courses.

The February 2019 Michigan Bar Exam contained some very straightforward questions. For example, the questions that tested Equity, Personal Property, Real Property, and others, were fair and straightforward. However, like most recent Michigan bar examinations, there were also questions that were not indicative of whether an examinee had the minimum competency to practice law.

The following February 2019 Michigan bar exam questions were not indicative of whether an examinee has the “minimum competency” required to practice law:

• The Constitutional question tested the constitutionality of a forfeiture statute, which is not something that, to our knowledge, any law school or bar review courses teach.  These are ten points that someone very well versed in Constitutional Law, could be giving up, simply due to the unfairness of the question asked.
• The Domestic Relations question asked examinees to evaluate whether a referee could hear a motion to increase spousal support or whether the original trial judge had to hear the motion. The question expected applicants to know that a referee may hear all motions except motions pertaining to an increase or decrease in spousal support. This is nuanced and not taught by family law courses or bar review courses. This issue has also never been tested in the past. Even I, who graduated #1 in my law school class and have been studying the bar exam for nine years, would not have known the answer. This was one of three Family Law issues that were asked. We hope the Board does not weigh this as being worth 1/3 of the family law question, or 3.33 points.
• The Workers’ Compensation question asked two questions that tested minor points of law not covered by most bar review courses or Workers’ Compensation law school courses. These include: (a) whether pretrial discovery is available in a workers’ compensation case and (b) whether a redemption would need to be approved by the trial magistrate. (The third issue was which party has the burden of proof on a disability issue, which was fair.) Two-thirds of this question, or approximately 6.66 points’ worth, were nuanced questions that a practicing lawyer could simply look up. These questions did not test reasoning ability or whether an examinee had a competent understanding of worker’ compensation law.
• The Criminal Law question tested Assault with Intent to Commit Great Bodily Harm as well as Michigan’s Felony Firearm statute. These issues are not taught by most law school classes or bar review courses. However, these issues have appeared on past essay questions, so were slightly fairer than the above issues.

On the essays, there were about 20 points’ worth of questions that do not reflect an examinee’s competency with respect to Michigan Law. (This represents about 6% of an examinee’s score on the overall exam.)  This was not nearly as bad as the February 2017 exam. However, these 20 points can still make the difference between passing and failing. As many examinees know too well, even one point can make a big difference!

What is the effect of writing questions like this? 

We saw something interesting in February 2017, when the Michigan Board of Law Examiners wrote an exam that was a bit “off the rails” in terms of topics tested. That is, they tested so many topics that had not been tested in the past, that the exam had the following effects:

• First, those that had studied and completed past exams were not rewarded for their efforts. Students that should have passed did not.
• Second, students who did not study past exams were actually in much better shape for this exam! Students who, statistically speaking, should not have passed ended up passing due to a high grading curve.

If the Board writes an exam that tests issues that have not been tested before or that are nuanced and arcane, some people will not be affected. For example, people who graduated at the top of their class and know the law extremely well will likely pass regardless of the difficulty of the exam. And people who graduate at the bottom of their class and do not study/do not know the law will likely fail despite any grading curve or bit of luck they may have. However, it is that middle portion — the large percentage of people hovering around the “minimum competency” benchmark that are affected. People who don’t really deserve to pass end up passing. And people who should pass the bar exam do not pass.

Why does the Board write these essay questions? 

We have heard in passing that the Board sometimes writes questions to “throw people off” — certainly not the goal of the exam. We have also heard that the Board does not like “the predictor” (that is, me!) Indeed, we try to predict which topics are ripe for testing in our Michigan bar exam seminar. So, maybe this makes them more inclined to write “odd” essay questions. This is all word of mouth and we could be wrong about this or thinking too highly of ourselves!! ;) We cannot speak for the Board and do not attempt to do so.

Maybe the Board is trying to write fair questions, but is simply not always succeeding.

Indeed, we do know is that the current Board is not composed of law school professors. It is composed of three judges and two practicing attorneys. We are sure they are great judges and attorneys. However, they are far removed from law school. Perhaps if the Board is not trying to “throw people off” the Board is attempting to write a fair exam but simply does not know what law school or bar review courses cover. If this is the case, maybe there should be a review process of exam questions or some other way to measure fairness prior to an exam being administered.

The license to practice law for so many applicants depends on it.

So, what should the Board do? 

What we do not need is easier grading or higher grading curves. These are not the way to make the exam fair.

We also do not need a specific pass rate. The pass rate should not matter so long as the exam is fair (though it may be one of many indicators of whether an exam is fair).

What we do need are questions that are fair and reflect what students learn in law school. Questions can be difficult, or test issues they have never tested before, and still be fair. For example, the Board could test present and future interests, something that has not been tested in two decades, in a Real Property question. That would be “new” and “challenging” for examinees. But it would still be fair.

So  — (assuming word of mouth carries any weight) rather than writing questions with the goal of tricking students or “throwing students off” or to spite the “predictor” — the goal should be to write questions that test whether an examinee has the minimum competency to practice law. And every single essay should further this goal. Essays do not have to be super predictable, but they should have some issues that are straightforward and some that are more challenging. How the Board accomplishes this task — whether it is consulting with out of state professors, or undergoing some review process — is not something that I am speaking to in this post. However, it is clear that there needs to be some change in the way that questions are written.

Then the grading, the curve, and the pass rate will fall into place. And not only will the examinees whose licenses and careers depend on this exam benefit, but so will the general public.