The Multi-State Performance Test: A Measure of Law Schools' Competence to Prepare Lawyers

Abstract

Since the emergence of the university law school as the primary educator of almost all American lawyers, some members of the profession have questioned its focus as unacceptably remote from law practice. Ironically, law schools grew in prominence in the nineteenth century against a backdrop of apprenticeships with practicing lawyers in which, for a fee, the trainees read Blackstone and Coke, copied legal documents, and watched their mentor do his work. This "hands-on" training lost any attraction it may have had to an aspiring lawyer very quickly. The arrangement had a tendency to degenerate into mere drudgery in the absence of a dedicated lawyer-teacher in the role of the supervising attorney. It is not surprising, then, that when Harvard Law School in 1829 filled its prestigious Dane professorship by the appointment of United States Supreme Court Justice Joseph Story, students who could afford it preferred life in Cambridge, Massachusetts, to what was the dreary routine of the law office apprenticeship.

The education of lawyers has long been characterized by the debate about how lawyers are best trained. Is the best preparation for the true lawyer the study of the law through noteworthy case opinions as a science within the classroom, or is it through apprentice-training under the supervision of lawyers, some of whom have themselves become skilled in its actual practice? A close reading of the seminal advocates of each approach belies the simplistic aspects of such a dichotomous question. Christopher C. Langdell, the father of the modern American law school himself, speaks of legal doctrine's application to human affairs as what endows its true significance. And Jerome Frank, the eminent New Dealer and the apostle of the "law clinic," recognizes the critical role of the knowledge of legal rules and principles of opinions in a lawyer's armamentarium. Thus, any consideration of how law schools may best prepare competent lawyers must necessarily accept that the answer is a matter of balance in emphasis, and not the exclusion of either the intellectual challenge or practical experience. Both knowledge and its application are essential, although at times through the history of legal education, one or the other has taken a secondary role.

In this essay, I will address two issues that provide the context for the place of a performance test in a bar exam alongside the multi-state objective and essay form components: First, what is the significance of the implementation of the performance test as part of the bar exam? Second, will the performance test affect the way law schools prepare students to be lawyers? After all, the emergence of the Multi-State Performance Test provides the law school with yet another opportunity to reflect on how it prepares its students for the practice of law.

Keywords: legal education, law school curriculum, Multi-State Performance Test, MPT, lawyer, training, preparation, legal practice