Radical reforms in the bar exams

This year, the Supreme Court finally implemented the most radical reforms ever in the Philippine bar examinations. Congratulations to Justice Roberto A. Abad, chair of this year’s Bar Examinations Committee, for the care and foresight with which he carried out the reforms, and the daring to take on a challenge that countless reformers before him had long called for.

The bar exams have been administered on basically the same template since they were first given in 1914 (topped by the UP College of Law’s first valedictorian, Manuel Acuña Roxas). The model remained unchanged at least for the last 50 years: questions were designed by an anonymous panel of examiners, the answers were in essay form, and the bluebooks were blind-graded by the examiners. The only change happened in the 1970s with the shift toward problem-based questions that tested the analytic and not just the memorizing powers of the examinee. The first time I served as bar examiner almost 20 years ago, our briefing papers included essays by Justice Irene Cortes, the first woman law dean in Philippine history, who pushed for more complex case problems.

On the surface, the main change was the shift away from essay-type questions to multiple-choice questions (MCQs). You may wonder: So what’s the big deal? It’s a classic dilemma. On one hand, they offer fixed and clear-cut answers—options A to D—and exclude subjectivity in the grading of essay answers. On the other hand, precisely because MCQs narrow the choices already, they don’t gauge a candidate’s ability to “think like a lawyer.”

Also MCQs do not measure the examinee’s ability to communicate. No writing required, just pick a letter. This is a serious problem, considering that lawyer-talk, even at its best, is designed “to conceal rather than reveal.” It is therefore to the credit of Abad that he took on the challenge.

First, bar exam reforms are actually hindered by a very simple, practical problem. The exams are administered by a committee that sits for only one year. If the reform is not doable within one year, forget it. Abad had a straightforward solution: he started his work even before he took over as bar exams chair, rather than wait for last year’s exams to be finished.

Second, that groundwork consisted of consultations with the stakeholders: law deans and professors all over the country, and law students as well.

Third, as a result of these consultations, the scope of the exams was laid out in more detail so that the questions are less unpredictable and the examinees know precisely what to review.

What I didn’t realize (and I was pleasantly surprised to discover it later) was that this study outline would be given by Abad to the examiners, who were then instructed to design questions for specific items. This would ensure that the questions were spread out all over a field of law. (Still, I have heard that same unevenness problem for Commercial Law, which gave too much weight to one subject, Negotiable Instruments.)

Finally, the new bar exams reserved the last Sunday for legal writing that will simulate the kind of writing that comprises the work of entry-level lawyers. This addresses the problem that MCQs do not evaluate communication skills although, unfortunately in our country, these rest  mainly on one’s command of English rather than on one’s ability to explain in whatever language.

Years ago, I sat in several bar reform sub-committees convened by the Court. It was Justice Vicente V. Mendoza who first proposed MCQs, and he had to overcome the common notion that MCQs required memorizing rather than analyzing. Not so, he argued, since in fact well-designed MCQs can exact sharper analysis. But that was why he proposed that the questions be formulated by a sitting panel of experts who can bounce MCQs off one another, rather than the old model of the solitary examiner. I fully agreed.

That was why I was worried about Justice Abad’s plan to adopt MCQs using the solitary examiner. Two days after the first Sunday of the bar exams, my worst fears were put to rest. I sat on what Abad called a “validation panel” (for political law, in my case). My colleagues on the panel were dean Amado Valdez of the University of the East, professor Rene Gorospe of the University of Santo Tomas, and my former professor, dean Merlin Magallona of UP.

For our subject, it was our informal consensus that the questions were fair and balanced, did not unduly fixate on esoteric points of law, and were spread evenly across the entire field. In my personal opinion, however, I raised two basic issues. One, the questions were too many and the fact-situations too long given the limited time available. This can be remedied in future exams. Two, some questions could have more than one valid answer. This can be remedied right now for the 2011 examinees, by programming the computers to give credit to either of two answers. This should also address a problem unique to the 2011 examinees, who got mixed signals and were told at times that MCQs would be mainly “codal” or based on the statutory text, and at other times, based on case decisions. Case-based questions leave room for interpretation, and MCQs are difficult to answer when the difference between two answers is too fine and nuanced.

With the increasing number of aspiring lawyers, MCQs are inevitable since it is impossible for the solitary examiner to cope with the grading. The year 2011 marks one bold step, and the modest accommodations here proposed are but a token to the bravado of the class of 2011 who were the unwilling guinea pigs in a pedagogical experiment.

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