I talk to a lot of lawyers about licensing, and many suggest that the licensing process should ensure that new lawyers know basic concepts that are essential for competent law practice in any field. Detailed rules, they agree, vary by practice area and jurisdiction; it would be unfair (and impractical) to license lawyers based on their knowledge of those detailed rules. Instead, knowledge of basic concepts should support learning and practice in any area of the law.

NCBE seems to embrace that approach. As I discussed in my last post, NCBE is designing its NextGen bar exam to test “foundational legal skills” and “clearly identified fundamental legal concepts and principles needed in today’s practice of law.” Let’s leave skills aside for now and focus on those fundamental legal concepts and principles. Are there such concepts? Do lawyers agree on what they are? How does a licensing body like NCBE identify those concepts?

The Search for Fundamental Legal Concepts

NCBE began its quest for appropriate exam content by holding extensive listening sessions with bar exam stakeholders. The report summarizing these listening sessions pointed to three key points related to the knowledge tested by the exam: (1) Stakeholders generally agreed that the seven subjects currently tested on the MBE include the “core content” that newly licensed lawyers need to know. (2) Within that content, the current exam tests too many “nuanced issues and ‘exceptions to exceptions to rules.’” (3) Overall, the current bar exam tests too many subjects, since both NCBE and some states add content to the exam through their essays.

NCBE then conducted a nationwide practice analysis to “provide empirical data on the job activities of newly licensed lawyers.” This survey, which followed standard practice for identifying the content of licensing exams, asked respondents to rate 77 different knowledge areas. For each area, respondents were asked to give one of four ratings:

• 0 — this area of knowledge is not applicable/necessary for a newly licensed lawyer
• 1 — this area of knowledge is minimally important for a newly licensed lawyer
• 2 — this area of knowledge is important but not essential for a newly licensed lawyer
• 3 — this area of knowledge is essential for a newly licensed lawyer

This rating system followed standard practice, but it was not tightly focused on “fundamental legal concepts.” Each of the 77 knowledge areas on the survey might have contained at least one fundamental concept. In entry-level law practice, it may be more important for a lawyer to know a little about each of these areas (so that they can identify issues in client problems and seek further information) than to know a lot about a few of them.

Here’s an example: Admiralty law ranked dead last among the 77 knowledge areas included in NCBE’s practice analysis. But shouldn’t entry-level lawyers know that admiralty is a distinct field, governed by rules of its own and litigated exclusively in federal court? And that admiralty law governs even recreational boating on navigable waters within the United States? Otherwise, a new lawyer might waste time analyzing a water skiing injury under general negligence principles–and file a lawsuit in the wrong court.

The same is true of other low-ranking subjects in the NCBE practice analysis. Shouldn’t new lawyers at least know when principles of workers compensation, tax law, juvenile law, and dozens of other practice areas might affect their client problems?

“Fundamental concepts,” in other words, differ from “common practice areas,” although there is some overlap between the two. The concept of negligence, for example, is one that cuts across many practice areas–and is also central to a common practice area (personal injury law). But much of the time, the two types of knowledge diverge. Which is essential for minimum competence? Concepts that cut across practice areas, rules of law in fields where new lawyers commonly practice, or both?

The top ten knowledge areas identified in NCBE’s practice analysis underscore this tension. Four of the knowledge areas (civil procedure, contract law, rules of evidence, and tort law) are subjects in which many new lawyers practice–although those subjects also contain some concepts that cut across practice areas. The six others (rules of professional responsibility and ethical obligations, legal research methodology, statutes of limitations, local court rules, statutory interpretation principles, and sources of law) reference concepts that cut across many practice areas. In fact, four of these six (professional responsibility and ethical obligations, legal research methodology, statutory interpretation principles, and sources of law) cut across all practice areas.

Two of the subjects on NCBE’s top-ten list, statutes of limitations and local court rules, are particularly interesting because they directly embody a fundamental principle. I doubt that the lawyers who responded to NCBE’s survey thought that entry-level lawyers should know specific statutes of limitations or all local court rules. Instead, they seemed to be signalling the importance of these fundamental concepts. All entry-level lawyers should know that most causes of action have statutes of limitations and that it is essential to determine those limits at the very beginning of client representation. It might also be fundamental to know common ways in which the running of a limitations statute can be tolled. Similarly, all entry-level lawyers should understand that local courts have rules, that these rules often differ from the federal and state rules, and that it is essential to consult those rules. As a clinic professor, I can attest that many third-year law students don’t even know that local court rules exist, much less the type of subjects they govern. Yet local courts handle the overwhelming bulk of lawsuits in this country.

Next Steps

How did NCBE resolve this tension between fundamental legal concepts and rules that govern common practice areas? I’ll explore that subject in my next post. And then I’ll tie this discussion back to the need for a rule book outlining the “legal concepts and principles” that NCBE plans to test on the NextGen bar exam.