This article originally appeared in The Bar Examiner print edition, December 2016 (Vol. 85, No. 4), pp 4–5.
By Erica Moeser
As 2016 comes to a close, it is gratifying to look back and consider that this may be remembered as the year when the Uniform Bar Examination took off. When 2015 ended, 19 jurisdictions had adopted the test. That number now stands at 26 with the most recent addition of Oregon, which will administer its first UBE in July 2017. Welcome, Oregon! Wherever the adoptions go from here, the UBE is now firmly established, and that has been an important goal.
Some of the frenzy that emerged out of the July 2014 bar examination results and was inextricably linked to applicant performance on the Multistate Bar Examination has abated as awareness of the relationship of declining law school applications to test performance has grown. There is no reason to think that what I have termed “the new normal” will change anytime soon. It is telling that between fall 2012 and fall 2013 the law school entering class that emerged in 2016 was reduced from 43,155 to 39,674. That figure dropped to 37,892 first-year students in the fall of 2014, the class that will graduate in 2017 and test that July.
What we saw this past July is that MBE mean scores rose in roughly half of jurisdictions and fell in the others. Little of that movement upward or downward was attributable to changing pass/fail thresholds. For the first-time-taker cohort, it was more likely related to the initiatives at particular law schools to redouble educational efforts for some or all of the student body. I wish NCBE had the data to explore those relationships, but we do not. It rests with each law school to undertake an analysis of what worked well and what didn’t.
Some press accounts and some commentators have attributed the rising or falling fortunes of test takers in UBE jurisdictions to the UBE. We did not see that. Just as we do not accept that the UBE is responsible for downward shifts, we do not claim credit for upward ones, either. Each jurisdiction is unique and test-taking populations are so varied that more sophisticated analysis is essential if one wishes to be definitive.
One role that this organization can and must continue to play is that of Chief Explainer. There is a limitless supply of new bar examiners who need the knowledge of testing that will enable them to carry out their assignments, and a similarly limitless supply of others who are interested in commenting and should be informed in order to do so accurately.
As to the latter, a recent case in point had me listening to someone who claimed that the MBE tests memorization—not accurate! I also heard that the MBE disadvantages members of minority groups—not accurate! I also heard that the bar examination does not test everything that could be tested; that is, it is incomplete—accurate! The bar examination as it exists today represents a solid baseline, fairly efficiently delivered, that does not purport to test all of the knowledge and skills that go into being a lawyer. It is merely a sampling. That is the reason why every jurisdiction has placed faith in the law school accreditation process to extend the range of knowledge and skills that are taught and evaluated. And that is why a strong accreditation process is so important.
Could the bar examination expand to test more? Of course it could. Is there a stomach for that in an environment in which the cost of licensure would undoubtedly increase dramatically, and where the length of testing would be much greater in order to achieve the level of reliability that is essential for licensing tests? I doubt that.
I also heard the suggestion that law school and medical school are so similar as to provide the basis for changing the way in which we test lawyers, with a critical examination administered during law school after two years of classes. Now while that is not an unreasonable point of departure for a worthwhile discussion, it is by no means a sound conclusion without additional exploration. Given the still-reverberating reaction from a number of deans to the drop in MBE scores, one can just imagine the howls that would accompany test results delivered during law school. And if one examines the vast difference in selectivity at medical schools and law schools, it will be obvious that meaningful winnowing occurs at the medical school entry level to a far greater degree than it does at many law schools. (If you google selectivity in medical school or law school admissions, the stark realities will bite.)
This has been a season of terrible losses for the worlds of bar admission and legal education. I am grieving personally, but I am hardly alone. On September 23 Jerry Hafter, a Renaissance man if there ever was one, died after a remarkably short battle with a particularly vicious form of cancer. Jequita Napoli has eulogized him beautifully. Few people, if any, knew more about bar admissions and the intersection of licensing and legal education. He was a thoughtful observer and commentator over decades. He was a brilliant and decent man who loved his family, his calling as a lawyer, and his volunteer work. His death at 71 shocked and saddened us all. There was only one Jerry, and I can still hear him in my head.
Then on September 24 my friend Dan Bernstine, president of the Law School Admission Council, was discovered dead of heart failure at the age of 69. I met Dan in 1983 when he was appointed to be a bar examiner in Wisconsin and I was the administrator of the state’s bar admissions agency. He had a lofty career that took him to deanships and service as general counsel, and that culminated in the presidency of Portland State University before he accepted the LSAC position. He was incredibly accomplished. He was the quintessential example of the sharecropper’s son who overcame a myriad of obstacles and who ultimately prevailed. His charm and humor were magnetic. I can still hear him, too—both the words and the infectious laugh of a true friend.
We are all poorer for having lost these two extraordinary men during one tragic weekend in September.
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