The Road to (the other) 270
With the Presidential Election just days away, the number 270 is in the news a lot. It takes 270 electoral votes to win the 2020 presidential election. Political pundits and others try to forecast the different pathways that President Donald Trump and former Vice President Joe Biden can secure that magic number.
But when I hear the number 270, I don’t think about electoral votes at all despite the import of the upcoming election. Instead, I will forever view the number 270 as the number of scaled points examinees need to pass the majority of bar examinations.
Currently, 38 jurisdictions have adopted the Uniform Bar Exam, and 14 jurisdictions require a minimum passing scaled score of 270: Arkansas, Maine, Massachusetts, Nebraska, New Hampshire, North Carolina, Ohio, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming. Six jurisdictions require a score of 272 or more to pass the UBE, while 18 jurisdictions require a passing score of 266 or less.
But since I teach at a law school located in a jurisdiction that requires a scaled score of 270 points to pass the bar exam, and most of the law school’s graduates take the bar exam in a jurisdiction requiring a scaled score of 270, that figure of 270 is always the number I reference when I explain bar exam scoring and how to pass the exam.
There’s a lot of similarities that can be drawn between the bar exam and the Presidential Election. The simple comparisons are obvious: Election Day is the bar exam test day; election results are when bar exam results are released; and the inauguration of the President is the same as the swearing-in of the new lawyers.
But what the candidates do when deciding where and how to campaign is also similar to what examinees should be doing when preparing for the bar exam.
If you’ve been watching the news lately, you can’t avoid seeing President Trump, former Vice President Biden, or their surrogates hitting the trail to persuade voters before Election Day. Their travels and stops are strategically scheduled, maximizing face time, rallies, and speeches that could tip the Electoral College in their favor. Jurisdictions like Florida, Michigan, Minnesota, Pennsylvania, Wisconsin, and a handful of others have become popular campaign locations. Both campaigns know that the road to 270 will be decided by voters in just a few competitive states. As a result, they’re focusing almost all their resources to a few states rather than evenly campaigning throughout the entire United States.
Examinees to the bar exam should similarly prioritize their most valuable resource—study time—when determining how to earn 270 points.
Most examinees understand what is tested on the bar exam, but they also need to know how many questions are likely to appear in each subject, and how often a topic is likely to be tested on the multiple-choice and essay portions of the exam.
For example, while Torts make up one-seventh of the Multistate Bar Examination (the multiple-choice portion of the UBE), negligence questions make up one-half of those Torts multiple-choice questions. As another example, Constitutional Law also make up one-seventh of the MBE, but questions on individual rights make up half of those questions.
If you’re having difficulty with Torts or Constitutional Law and want to improve your performance in those two areas, it doesn’t make sense simply to study more Torts or more Constitutional Law without a thoughtful approach. Rather, you’ll want to target those areas where you can most quickly and most efficiently increase your scores, and you can do so by focusing on those areas that make up a larger number of questions within a particular MBE subject, like negligence in Torts and individual rights in Constitutional Law. Since these topics make up half of the questions in the respective MBE subject, additional time studying these topics will likely reap better scores, faster, than devoting the same amount of study time in defamation, for example, which might appear in one MBE question, if at all.
Here are some additional topics within other MBE subjects where you can improve your score quicker since they make up a larger percentage of questions compared to other topics within the respective MBE subject:
Contracts: About one-half of the Contracts multiple-choice questions will fall in the areas of contract formation and issues involving performance, breach, and discharge.
Evidence: About one-third of the Evidence multiple-choice questions will cover relevancy and reasons for excluding relevant evidence, including topics dealing with character evidence and impeachment.
Criminal Law and Procedure: For Criminal Law, you should focus on the common law crimes, and for Criminal Procedure, you should focus on the Fourth and Fifth Amendments.
In terms of essays on the Multistate Essay Examination portion of the UBE, it’s important to know not only how frequently a subject has appeared on the MEE, but it’s also important to know what historically has been tested if a particular subject does appear on the exam. For example, Family Law has appeared 15 times since 2008, for a frequency of 60 percent of the administrations since that time. Knowing that Family law has appeared on more than half of the administrations since 2008 should influence you to devote more time studying Family Law compared to, say, other subjects that appear less frequently on the bar exam, like Agency, which has appeared on 32% of the administrations during that same time frame.
But you shouldn’t just haphazardly study everything in Family Law. It’s important to know what typically is tested in a Family Law essay when a Family Law essay does appear on the bar exam. For example, an examination of the 15 Family Law essays reveals that division of property has been tested 9 times, marital agreements 7 times, and child support 6 times. So while you should prioritize Family Law over lesser-tested subjects, you should also prioritize those topics within Family Law—like division of property and the others identified—over other Family Law topics that aren’t as heavily tested by the examiners.
In addition to prioritizing study time based on what’s being tested, examinees should also assess which portion of the bar exam might need additional attention. With a total of 400 scaled points possible on the UBE, the distribution of points are as follows: MBE = 200 scaled points (50% of the overall points); MEE = 120 scaled points (30% of the overall points); and Multistate Performance Tests = 80 scaled points (20% of the overall points).
The most recent national average MBE scaled score released by the National Conference of Bar Examiners was 142.7 (for the early September 2020 administration of the MBE).
So, let’s say you’re average on the MBE. You’ll need another 127.3 points on the combined MEE and MPT portions of the exam. Since there’s no possible way to get the 127.3 points from either the MEE section or MPT section alone, you’ll need to appropriately apportion your study time in a way to secure those additional points.
During your bar preparation, you will likely complete lots of practice questions in all areas of the UBE. And you’ll know how you’re performing on the MBE questions, and you should know how you’re performing on the MEEs and MPTs (if you’re submitting them for feedback and scores). Use these results to help guide and steer your studying in the right direction to maximize your chances of passing the bar exam. If you’re answering about 65% correct on the MBE questions (which is approximately equal to the scaled average of 142.7), and if you’re averaging about a 3.50 (one a 1-to-6 scale) on the MEEs and MPTs, you should be well on your way to 270.
