ABA House to Vote on Uniform Bar Exam

February 2nd, 2016 / By

Originally published on Above the Law.

Non-lawyers are encroaching on legal services traditionally offered by lawyers. Technology is changing how lawyers and clients think about value. Law schools have created a mismatch between the number of graduates and entry-level legal jobs. Throughout it all, regulators across the country are actively grappling (and griping) about how best to address these extraordinary circumstances.

While proposed actions or inactions cause sharp disagreements around the country about how to move the profession forward in the 21st century, one common-sense action shouldn’t: adopting the Uniform Bar Exam. Next Monday, the ABA’s House of Delegates will consider a resolution from the ABA’s Law Student Division that calls for all jurisdictions to adopt this portable exam. The House should support this measure, and all jurisdictions should adopt the UBE as quickly as possible.

The current bar exam structure needlessly burdens mobility. Has your spouse been relocated? Do you have an opportunity at a new firm? Better hope your new state has a reciprocity agreement and that you qualify. Otherwise, you will need to endure an exam that, like the one you already passed, tests minimal competency not jurisdictional intricacies.

For students, it’s even more ridiculous. Law students must choose a jurisdiction before they graduate. While two-thirds of graduates find work in their school’s state, half of graduates don’t find a job until after graduation. More than a quarter don’t find a job until after they receive their bar results. In a tough job market with mountains of debt and stagnant salaries, you are expected by your elders to commit to a state before an employer will commit to you.

The states that have discussed the UBE often point to their “specialties” or key procedural differences to justify non-adoption. If legal practice significantly varied by state, it may be easier to believe. But their core concern is naked protectionism. There is no empirical support for assertions that rejecting the UBE increases work or salaries in the state. As is often the case, fear serves as a substitute for evidence. The only thing these states should fear, however, is that maintaining outdated walls without reasonable concessions will only sharpen political opposition and lessen credibility.

The UBE presents a solution for law students and recent graduates that’s welcomed by many legal educators, regulators, and practitioners, as well as the ABA Section of Legal Education — the accreditor of law schools — which endorsed the Law Student Division’s resolution as a co-sponsor. The two-day test consists of the components that already make up many state exams now: the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT) tasks, and the Multistate Bar Examination (MBE).

Jurisdictions still retain control. The UBE states can (and do) set different minimum passing scores. Several UBE states also require an additional test, course, or some combination of the two to ensure jurisdiction-specific competency. States can also determine how long they’ll accept incoming UBE scores for transfer.

Last May appears to have been the turning point for UBE advocates. New York adopted the UBE for administrations beginning in July 2016. And what happens in New York tends to not stay in New York. As Above the Law previously reported:

When the Multistate Bar Exam (MBE) was first introduced in 1972, it was only administered by 11 jurisdictions until New York adopted it … [O]nce New York agreed to administer the MBE, more jurisdictions followed suit; today, the MBE is administered by all but two U.S. jurisdictions (Louisiana and Puerto Rico).

Already New Mexico, Iowa, and South Carolina hopped on board for the UBE. As of today, 19 states have adopted the UBE. With Washington, D.C., Vermont, Massachusetts, and New Jersey taking important steps towards adoption, the number will grow.

Delegates to the House should rightfully support the call for this needed measure. We live in a mobile society. There’s no need to keep the legal profession in the 19th century.


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