New York Adopts the Uniform Bar Exam

May 5th, 2015 / By Deborah J. Merritt

New York’s highest court announced today that it will begin administering the Uniform Bar Exam (UBE) in July 2016. In addition to passing the two-day UBE, applicants will have to complete an online course about NY law and pass an online exam based on that content.

New York’s move almost certainly will prompt other states to follow suit. Within a few years, we are likely to have a national bar exam. What will this mean for new lawyers? I offer some initial thoughts below.

Positives

1. The Uniform Bar Exam increases mobility for new lawyers. Passing the UBE in one state does not guarantee admission in a different state, because states can select different passing scores. States may also require applicants to complete a state-specific exam. The UBE, however, greatly eases interstate migration for newly admitted lawyers. This is particularly important in a tight job market.

[Adoption of the UBE doesn’t matter as much for experienced lawyers, because most states allow lawyers to “waive in” to their bar after five years of experience in another jurisdiction.]

2. This increased mobility is especially important to women lawyers. My study of new lawyers admitted to the Ohio bar in 2010 found that women were significantly more likely than men to move out of state within their first five years of practice. Almost one fifth of the women (18.4%) left Ohio after gaining bar admission, while just 14.1% of the men did so.

3. By testing general principles, rather than the law of a particular state, the UBE better fits the material that students cover in law school. Students may have to spend somewhat less time preparing for the bar. Even if a state tests separately on local law, as NY plans to do, that testing will occur at a different time.

4. The National Conference of Bar Examiners (NCBE), which creates all portions of the UBE, is a large organization with the resources to develop and pretest sensible questions. Its essay questions may be more fair than ones developed by state bar examiners.

Negatives

On the other hand, there are several drawbacks to the UBE. As a long-time supporter of a national bar exam, I am more troubled by these issues than I once thought I would be:

1. Although mobile lawyers will benefit from the UBE’s portability, those who remain in-state will have to jump more hurdles than ever to gain bar admission. On top of a two-day bar exam, they will have to complete an online course about NY law and pass a 50-question multiple-choice test on that law. Our school’s director of bar support, who has coached students taking the NY bar, says that the NY multiple-choice test is no picnic.

2. Bar passage could become even more onerous if NY adds an experiential component to its testing. The advisory committee that endorsed adoption of the UBE also recommended creation of a new “task force to study whether experiential learning may be quantified as a licensing requirement or whether some other demonstration of skills acquisition should be required for licensing.” I like the idea of measuring practice skills before bar admission, but I would replace some of our written exams with the experiential component. Adding yet another layer to proficiency testing imposes burdens on new lawyers that more senior ones did not face.

3. Multiple-choice questions make up half the UBE score, a higher proportion than some states currently allot to those questions. Multiple-choice questions have their place, but I would rather test new lawyers on performance tasks like those in the MPT. To me, the MBE is even further removed from practice realities than any law school exam. A closed-book exam covering seven different, very broad subject areas does little but test an applicant’s ability to cram large amounts of material into memory.

4. In addition to my general concern about multiple-choice bar exams, some bar studies find that women (on average) score slightly higher than men on essay questions and performance items, while men (on average) score slightly higher on the MBE. When the MBE accounts for 35% (California) or 40% (Texas) of the exam, these differences balance out, creating virtually identical pass rates for men and women. Is it appropriate to increase the weight accorded multiple-choice items if we know that this shift is likely to favor one gender?

5. NCBE was remarkably unresponsive in dealing with the possible impact of last summer’s ExamSoft meltdown. The organization has also become less transparent, withholding information (such as raw scores) that it used to disclose. Concentrating even more power in one organization is risky. Who will hold NCBE accountable? What pressure will it feel to maintain high-quality services?

Other Thoughts

I continue to consider the advantages and disadvantages of NY’s move to the UBE, and will update this post as other points emerge. Please add your own thoughts in the comments. A national bar exam seems long overdue, but aspects of this shift concern me. As other states react to NY’s move, can we find ways to preserve the advantages of a national bar exam while assuring that (a) the exam tests proficiencies and knowledge that matter; (b) the exam does not create additional burdens for bar applicants; and (c) there is appropriate oversight of the organization administering the exam?