Bar Exam - Photo from Above the Law (http://abovethelaw.com/2015/04/what-is-most-important-in-choosing-a-bar-prep-course/)

As New York Goes, so Goes…?
Big changes are afoot in legal education generally – there’s more emphasis on experiential learning and on placements outside of the school environment, and enrollment has been significantly reduced in many schools. The latest change to loom on the horizon is a significant shift in the time honored barrier to practice: the Bar Exam. In New York (typically a bar that insists it is unique), the State Bar has decided to eliminate the New York elements of their Bar Exam, and use only the Uniform Bar Exam (UBE) – a variation of the Multi-State Bar Exam (MBE) that we remember so well. New York joins 15 other states whose bar exams consist only of the UBE.

This change may not be quite as drastic as you are thinking. The second day of the new UBE will consist of the well-known MBE, with 200 multiple choice questions. The first day, however, will have six essays and two performance tests, created by the National Conference of Bar Examiners and with no state-specific law involved. New York will also require those seeking to practice in New York to watch online trainings on New York law, and to pass a shorter multiple choice test on topics covered in those trainings.

Still, the shift is fairly dramatic. If you pass the Missouri bar, you are effectively well on your way to being licensed in New York – and in Alaska and Colorado as well. Suddenly, your law license is portable, without investing at least two months in a new exam.

The primary motivation for this shift seems to be the changing nature of the practice of law. In an interview, New York’s Chief Judge Jonathan Lippman said, “We recognize it’s a global world and there has to be portability with the law license around the country. We think we would be sticking our heads in the sand if we don’t realize the practice of law doesn’t stop at state lines.” Judge Lippman indicated that, given the high status that New York holds in the legal community, he expects that other states will follow suit.

California’s Motivations
It is true that California tends to follow New York (when we aren’t trying to be the leader ourselves). And, indeed, the California State Bar is considering a proposal to reduce the length of the Bar Exam from 3 days to 2 days. This would not, however, make your New York license transferable to California – California is not (yet) moving to eliminate California-specific content, or join the UBE “movement.”

Keep Calm and Pass the Bar ExamIn fact, the motivation seems to be largely coming from two other considerations. First, there are the serious concerns that the exam has become too difficult: in July of 2014, bar passage rates across the nation plummeted. California’s rate declined by more than 7% to 48.6% – and 12 other states saw decreases in the 5-9% range. Four states had passage rates that declined by 10% or more.  Pundits and law school deans are still fretting about why this happened, but it has certainly inspired an inquiry into whether the test is too difficult.

Second, reducing the number of days of the test will significantly reduce the cost of the administering the test. The Daily Journal reported that the savings would be about $895,000. State Bar officials also assert that the third day does not add much to the information provided to the Bar by the first two days of testing.

The California Proposal
California’s proposal calls for the continued use of the one day of MBE multiple choice test. The number of essays required would be reduced from six to five, and the performance tests reduced from two three-hour tests, to one ninety-minute test. Interestingly, the MBE test would go from being 35% of your score, to being 50% of your score. This seems counter-intuitive, given the national and California movement towards greater emphasis on experiential learning – something tested more by essays and the performance test, than by a multiple choice option.

Status
The California State Bar Committee of Bar Examiners has already approved this proposal. It remains, however, to be approved by the State Bar Board of Trustees – and it has not yet been scheduled for a vote. And after that, the State Bar will likely consult with the Supreme Court, although the Court’s agreement is not required. So this proposal may not become a reality for some time.

Personally, I’m all in favor of reducing costs and stress. That famous movie, One-L, notwithstanding, there is little to recommend the approach of “it was horrible for me, and so it should be horrible for you.” If we can make the process more humane, perhaps we will be on the path to more humane lawyers? The money saved could be devoted to funding legal services, or more support to lawyers in difficulty. I wonder, however, if the low bar passage rate is truly a reflection of an exam gone awry, or whether it is a reflection of the students willing to go to law school in this economy. And, of course, it may be that the bar exam has implicit biases (as has been persuasively shown to be the case for the SAT), and that those biases are emerging now that diversity efforts and lower enrollment has made law school more accessible to minority applicants.

It behooves us, though, to understand this problem better, before we pick a solution.

Tiela Chalmers is the CEO of the Alameda County Bar Association and on the Board of Director for the Volunteer Legal Services Corporation. Tiela has been a consultant in the fields of legal services and pro bono, handling projects including coordinating the Shriver Housing Project in Los Angeles, the largest of the “civil Gideon” pilot projects in California, and working with the ABA and a national working group on updating the Pro Bono Standards. Previously the Executive Director of Volunteer Legal Services Program in San Francisco, Tiela worked at VLSP for many years with Tanya Neiman until her death. Prior to VLSP, Tiela was an attorney at Farella, Braun + Martel in San Francisco.

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