The LSU Law Center has filed a position paper with the Louisiana Supreme Court seriously questioning major changes in the Louisiana Bar Exam proposed by the Court’s Committee on Bar Admissions (COBA). The Law Center’s submission, signed by LSU Law Chancellor Jack Weiss, says that COBA’s proposals pose “a material threat to this State’s longstanding, common sense requirement that would-be Louisiana lawyers must demonstrate through the bar exam that they possess necessary competence in Louisiana law.” The Law Center submitted its comments on March 15.
The Law Center’s Executive Summary of its submission to the Court follows below. The full submission can be accessed through this link: LSU Paul M Hebert Law Center Comments, March 15, 2011 – pdf
Response of Louisiana State University Paul M. Hebert Law Center
to Call for Public Comment on Proposed Modifications of the Louisiana Bar Examination
March 15, 2011
“In developing and evaluating any testing program, validity is the primary concern.”
(NCBE Director of Research Michael Kane, Ph.D.)
The Committee on Bar Admissions (“COBA”) has proposed a radical revision of the Louisiana bar examination. If approved by the Louisiana Supreme Court, the COBA proposals would be implemented in two phases. First, as soon as 2012, the present system of scoring the exam would be replaced by “compensatory scoring.” Under a compensatory scoring scheme, a test taker can pass the bar exam and gain admission to the practice of law in Louisiana by achieving a specified aggregate score across the multiple subject matters of the bar exam without necessarily achieving a passing score on any specific subject matter exam or exams. As the name suggests, compensatory scoring allows high performance on a few subject matter exams to “compensate” for failing performance on an unlimited number of other subject matter exams.
Compensatory scoring is a drastic departure from the subject matter-specific method of scoring the Louisiana bar exam that has been in effect for decades. Under the current scoring regime, a candidate must pass seven of the nine subject matter exams and four of the five Louisiana Code exams in order to be admitted to the practice of law in Louisiana. Compensatory scoring would enable substantial numbers of test takers to fail multiple Louisiana Code exams yet nevertheless gain admission to the Louisiana bar and be licensed to practice law in our state. According to COBA’s own analysis, approximately eight percent of all candidates taking the exam in recent years—more than two hundred candidates–would have failed by reason of failing two or more Louisiana Code exams yet would pass under a compensatory scoring regime. In our judgment, every person licensed to practice law in Louisiana should be required to demonstrate substantial competence in Louisiana civil law. Compensatory scoring would demonstrably undermine that common sense requirement.
Second, beginning in 2015, COBA proposes a complete reworking of the format and substance of the Louisiana bar exam. The current exam for many years has consisted of nine subject matter essay exams (including five Louisiana Code exams) some 21 hours in total duration and given on alternating days (Monday, Wednesday, Friday) of the week in which the exam is administered. COBA proposes a shortened 18 hour exam given on consecutive days. The revamped bar exam would consist of multiple choice questions covering both “national” and Louisiana law, a “performance” exam requiring no specific knowledge of substantive law, and nine total hours of essay questions devoted to Louisiana law. Under the COBA proposal, testing of Louisiana criminal law, Louisiana criminal procedure, and Louisiana evidence law would be eliminated and replaced by multiple choice testing of national law in those subject matters. The “performance” exam and national multiple choice portions of the exam would be prepared by the National Conference of Bar Examiners (“NCBE”), a standardized test preparer that has advised COBA on all aspects of the COBA proposals. The portions of the exam prepared by NCBE would be identical to bar exam components prepared by NCBE for use in other states. The overall format of the proposed revisions of the Louisiana exam closely resembles the format of a “uniform” national bar examination actively promoted by NCBE. COBA has not specified how this drastically reworked Louisiana bar exam would be scored. It appears very likely, however, that COBA and NCBE contemplate compensatory scoring comparable to COBA’s “short-term” proposal. NCBE publications indicate that the scoring of the reworked exam would be disproportionately based on the national multiple choice portion of the exam to be prepared by NCBE.
Like the “short-term” proposal to adopt compensatory scoring of the current Louisiana bar exam, the proposal to overhaul the exam itself by 2015 raises serious questions about the extent to which the revised exam would require candidates for admission to the Louisiana bar to demonstrate competence in and understanding of Louisiana law. It is clear that the revised exam would shift several core subject matters (criminal law, criminal procedure, and evidence) from Louisiana to national law. Because the proposal does not provide important details of the scoring of the reworked exam, it remains unclear whether compensatory scoring of that exam would devalue Louisiana law competence to the same extent as the short-term compensatory scoring proposal. Other uncertainties about the reworked exam include the rationale for and impact of the proposed shift to “blind” and “mixed” essay questions; the impact of the proposed “scaling” of the entire exam to the national multiple choice questions prepared by NCBE; and the extent to which proposed Louisiana multiple choice questions will test substantive knowledge of Louisiana law or more generalized test taking skills comparable to those associated with standardized aptitude tests like the Law School Admission Test.
To summarize: the short-term COBA proposal for compensatory scoring of the Louisiana bar exam beginning as soon as 2012 would substantially and inappropriately undermine the requirement of demonstrated competence in Louisiana civil law. We believe that the long-term proposal to drastically rework the Louisiana bar exam effective in 2015 raises many unanswered questions. The long-term proposal likewise poses a material threat to this State’s longstanding, common sense requirement that would-be Louisiana lawyers must demonstrate through the bar exam that they possess necessary competence in Louisiana law.
More fundamentally, we do not believe that there has been adequate consideration, explanation, or discussion of either the basic premises animating the proposed changes to the bar exam or of various alternative solutions to whatever ills COBA may believe infect the current exam. Of these perceived ills, much has been bruited about, but little stated explicitly. Yet until the weaknesses purportedly requiring major changes to the present exam are specifically and openly identified and can be objectively analyzed, it will be impossible to determine whether the changes proposed by COBA are necessary or whether they are responsive to whatever problems may inhere in the scoring and structure of the current exam. To date, the reasons purportedly requiring the proposed changes—both short-term and long-term —have been a “moving target,” an ever-changing and only dimly understood set of supporting rationales.
We also believe it is imperative that there be careful and independent analysis of the statistical or “psychometric” foundation that COBA cites in support of its proposals and in opposition to both the current exam and various alternatives to the COBA proposals. In particular, COBA asserts that certain prescribed levels of statistical reliability and consistency are absolute, immutable requirements for a satisfactory bar examination. According to this theory, these mathematical imperatives override whatever common sense concerns we and others have expressed about eliminating or undermining the current exam’s requirement of demonstrated competence in Louisiana law. In our judgment, however, demonstrated Louisiana law competence is an essential ingredient of a valid Louisiana bar exam. And NCBE’s own publications agree that validity, not reliability, is the paramount value. For this reason, among others, we urge the Court to await and to afford whatever time is reasonably necessary for the completion of an independent examination of the COBA proposals by the special committee of the Louisiana State Bar Association appointed by President Michael Patterson in December, 2010. There is no need for haste, and every reason for careful evaluation of COBA’s far-reaching proposals.
Finally, we recognize that reasonable men and women might disagree over the fundamental policy issue of whether bar examinations in general and the Louisiana bar examination in particular should emphasize local law. NCBE and perhaps others advocate a regime of uniform bar admission and national testing standards that would facilitate multiple bar admissions and multistate practice. This uniform national regime would contrast sharply with Louisiana’s longstanding tradition of requiring extensive demonstrated competence in Louisiana civil law. We do not believe that any substantial segment of the Louisiana bar or bench favors revising our bar admissions standards to facilitate bar membership, advance reciprocity, or otherwise serve the values of a uniform national bar admission policy. Indeed, we do not understand COBA to favor this policy. Nevertheless, if some support the COBA proposals because of their potential to further a national or uniform bar examination policy, the wisdom and appropriateness of that policy for our state should be debated openly and directly, not indirectly in terms of psychometric imperatives.
 See, e.g., Michael T. Kane, Ph.D., Reflections on Bar Examining, The Bar Examiner 6, 8 (November 2009).