Reflections from Past NCBE Board of Trustees Chairs

This article originally appeared in The Bar Examiner print edition, Summer/Fall 2021 (Vol. 90, Nos. 2–3), pp. 12–19.

Origins, Early Work, and Ongoing Contributions: NCBE Continues to Fill a Vital Need after 90 Years

By Jequita Harmon Napoli

As NCBE celebrates 90 years of serving bar admission authorities throughout the United States and its territories, it is an opportune time to reflect on where we came from and where we are in serving our judicial branch of government. The late Thomas P. “Tip” O’Neill, Jr., has been credited with coining the phrase “All politics is local,” in reference to the legislative branch of government. Whether or not that remains a truism, in the judicial branch, regulation of admission to the bar has always been entirely local, reserved exclusively to each jurisdiction’s admissions authority. Although no less local today, the process by which candidates are evaluated prior to admission to practice law has gained in similarity across US jurisdictions over the past 90 years.

My state of Oklahoma has a lengthy history with NCBE. Though US bar examiners had been meeting informally as far back as the 1890s, it was at a meeting of the ABA Section of Legal Education and Admissions to the Bar in 1930 that a resolution was passed asking the Section to appoint a committee to formally call a meeting of bar examiners from across the country. The first meeting of the Conference was on September 16, 1931. Among the 19 attendees was Oklahoman A.G.C. Bierer, Jr., who went on to serve as NCBE chair from 1937 to 1939.1

The creation of NCBE has been described as “designed to fill a vital need for a national organization through which state boards of bar examiners could cooperate with each other, with the law school community, and with the organized bar.”2 It was hoped that, through this organization, bar examiners could benefit from one another’s experiences and ideas, while also improving and strengthening overall bar examination and admission standards, which at that time varied significantly among jurisdictions.

Early work of NCBE included launching this very publication, the Bar Examiner, which was first released as a monthly bulletin in 1931; collaboration with the ABA Section and the Association of American Law Schools for the creation of a Manual for Bar Examiners in 1940, followed by an initial Code of Recommended Standards for Bar Examiners in 1958;3 and publication of a Bar Examiners’ Handbook in 1968.

Launch of the Multistate Exams

During the first 40 years of NCBE’s existence, until the launch of the Multistate Bar Examination (MBE) in 1972, bar exams looked much like they did before the advent of NCBE—essay questions drafted by local attorneys, generally as a volunteer service to the bar, or by faculty members or other content experts, for a fee paid by the jurisdiction. NCBE, composed of members of bar examining boards and character committees under the volunteer leadership of a small executive committee, and later a larger board of managers (now a Board of Trustees), fulfilled its mission of promoting cooperation among the jurisdiction boards and encouraging communication on issues surrounding the bar examination and admission standards. Topics considered in the early years included writing bar examination essay questions, grading bar exams, moral character and fitness of applicants, and test administration—all topics as relevant today as they were in 1931.

Ultimately, the NCBE Board of Managers imagined a multiple-choice test of general principles of law in foundational subjects that could fairly assess legal knowledge and analysis in a consistent, objective, and efficient manner. With a grant of $125,000 from the American Bar Foundation, a special NCBE committee was created, which, with the assistance of the Educational Testing Service (ETS), began work on a groundbreaking 200-­question ­multiple-choice examination. The MBE afforded jurisdictions an opportunity to supplement state essay examinations and was designed to bring uniformity and objectivity to the bar examination process. Administration of the first MBE was in February 1972. NCBE then developed the Multistate Professional Responsibility Examination (MPRE), first administered in 1980, designed to provide a more effective way of testing candidates’ knowledge of legal ethics than through essay questions.

Following the wide acceptance of these two exams, NCBE later developed the Multistate Essay Examination (MEE), followed by the Multistate Performance Test (MPT), which were first administered in 1988 and 1997, respectively. My first invitation to join an NCBE committee, the MEE Policy Committee, was in 1990. At that time, the viability of the MEE was uncertain. There were debates over the proper time to allot for answering each question, and whether there was a critical mass of jurisdictions desiring to adopt the MEE (as either a substitute for or a supplement to locally written essay questions). I recall that the interest of Illinois in adopting the MEE if it consisted of 30-minute questions carried the day, and the future of the MEE was secure.

Fast-Forward: The Uniform Bar Examination

Now, of course, the MBE, the MEE, and the MPT are the components of the Uniform Bar Examination (UBE). The idea of a uniform bar exam traces its roots to a meeting of the Conference of Chief Justices, the Association of American Law Schools, and NCBE, with then-president Erica Moeser having a prominent voice in that discussion. A special NCBE committee thereafter evaluated the concept and what such an exam would consist of.

At that time, virtually all jurisdictions used the MBE, and a number of jurisdictions were already using all three exams—the MBE, the MEE, and the MPT. What was revolutionary about the concept of the UBE, though, was not the combining of the three exams, but rather that the jurisdictions could agree to uniformly administer and grade these exam components to produce a portable score—a single score, achieved in one jurisdiction, that could be transferred to seek admission in another jurisdiction.

As of September 2019, 36 jurisdictions had adopted the UBE when Oklahoma embarked on a study considering whether it should also adopt the UBE. On June 8, 2020, the Oklahoma Supreme Court unanimously approved the Advisory Committee’s recommendation to adopt the UBE, with the first administration in July 2021. Since Oklahoma’s adoption of the UBE, 4 more jurisdictions have joined the ranks, bringing the total to 41.

A 90-Year History of People

As an Oklahoma bar examiner beginning in 1988, I was certainly focused on the local level, but participating in NCBE educational events and serving on NCBE’s Board of Trustees and various committees over the years has clearly broadened my perspective. Over its 90-year history, NCBE has developed from a small operation to the major professional testing organization it is today. This transition was made possible by the hard work and dedication of volunteers and NCBE staff.

NCBE’s history is, after all, a 90-year history of people. Jerry Hafter, who served on the NCBE Board during my tenure and preceded me as chair by four years, often reflected on his feeling that he was standing on the shoulders of the giants in bar admissions who came before him—the giants on whose shoulders we stood to see the future. There were the giants Jerry spoke of, and the giants I have met along the way—all of whom started with a local focus, and who came together in joining NCBE to improve bar admissions across the country.

It All Began with a Bold Initiative 90 Years Ago: Reflections on the MBE, the UBE, and Continued Innovation

By Diane F. Bosse

In 1931, an intrepid group of bar examiners met in Atlantic City, New Jersey, with seed money from the American Bar Foundation to discuss the possibility of sharing state bar exam essay questions. That was the formational event in the history of the National Conference of Bar Examiners. It was a bold endeavor, borne of an acknowledgment that legal problems encountered in one jurisdiction might similarly arise in another, such that a question framed in one jurisdiction could be asked in a sister state. The answers might vary around the edges and rely for their conclusions on state-specific authorities, but the legal problems and issues presented would be analyzed in common fashion with reference to shared principles.

Birth of the Multistate Bar Examination

Fast-forward to 1972 and the birth of the Multistate Bar Examination (MBE). That watershed event enabled the bar exam to become a psychometrically equated test, with a score achieved at one administration of the exam representing the same level of proficiency as the same score achieved at a different administration. With the addition of many more questions to the test, the reliability of the exam was greatly improved. And by scaling locally developed essay questions to the MBE, jurisdictions were then able to harness the power of the MBE to accurately measure overall performance.

The adoption of the MBE not only improved the scientific precision of scoring the exam, but it also saw a shift in content from a state-specific focus to the testing of general principles on the foundational subjects that comprised the test. The premise was that, as a profession, across the country, we share a common core of fundamental legal principles, derived in large measure from the English Common Law, that guide the analysis and resolution of legal problems wherever they arise.

My own state of New York was characteristically skeptical. New York was not among the early adopters of the test, but rather our first administration was in July 1979, seven years after the first MBE was administered. Even then our New York Board had concerns about whether the given answers to the MBE questions would be the same if New York law was applied. State review of the MBE was permitted in those early days, and in advance of each administration, our Board members and their assistants (a position I held at the time) assembled to scour the questions for any item where the key (the correct answer) would differ under New York law.

We rarely found such a question. When we did, it was most often, for example, a question where New York evidence rules differed from the Federal Rules of Evidence or constitutional protections afforded to New York criminal defendants were more expansive than is required under the federal Constitution. Clearly, the answers were correct (given that the Federal Rules of Evidence and cases decided under the US Constitution were the authorities for the answers), and the answer would be the same as the stated answer for matters proceeding in federal district courts sitting in New York, but we nonetheless dutifully identified and reported these variances.

Over time, the MBE expanded to include seven subjects and came to be used in 54 US jurisdictions (all US states except Louisiana, an understandable demurrer given its civil law heritage; the District of Columbia; and four US territories). Jurisdictions recognized the psychometric benefits of the test. Initial doubts as to the ability of multiple-­choice questions to effectively test legal knowledge and analytical skills were overcome when bar examiners had the opportunity to review the test. And, significantly, jurisdictions recognized that, despite idiosyncrasies of local law, the fundamental principles of the subjects tested crossed state lines. The prerequisites to formation of a contract, the elements of a negligence action, the nature of joint tenancy, mens rea requirements for criminal liability, and like concepts are learned by every law student and form the core of the issues tested on the MBE. And, of course, much of the MBE is founded on federal law—federal constitutional law, federal civil procedure, and the Federal Rules of Evidence—such that state law is not invoked.

The Uniform Bar Examination: Introducing the Concept of Score Portability

The next milestone in the evolution of law licensure testing was the first administration of the Uniform Bar Examination (UBE) in February 2011. In the intervening years since the adoption of the MBE, the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT) had been introduced. The UBE grouped together the three tests—MBE, MEE, and MPT—to comprise a complete package of assessments that would reliably measure competence in the knowledge and skills required for entry-level practice.

But the unique idea behind the UBE was not the combination of tests, but rather the concept of portability. For the first time, a score achieved in one jurisdiction could be used to achieve admission in another jurisdiction to the significant benefit of newly licensed lawyers who might seek to relocate for employment or family reasons, of lawyers engaged in cross-border representation of clients, of clients with legal problems that cross state lines, and of law firms seeking associates admitted in multiple jurisdictions. Candidates tested in one jurisdiction were now able to seek admission in another jurisdiction without the necessity of taking an additional bar exam with its attendant cost, delay, and anxiety. Over 27,000 young lawyers have now benefited from the portability of the scores they achieved on the UBE, including almost 7,200 in 2020 alone.1

Innovation Throughout the Years

Over the past 90 years, we have traveled along this continuum, starting with the idea that essay questions drafted in one jurisdiction might be used in another, proceeding from there to the creation of a multiple-choice test based on fundamental principles that provides a predictable anchor for bar exams wherever they are given, and ultimately to a full complement of tests producing a score that can be exported to any one of a number of jurisdictions (now standing at 40) that have joined the compact, agreeing to accept scores earned in their sister jurisdictions.

Today, as we mark the 90th anniversary of the founding of NCBE, we stand on the frontier of the next generation of the bar exam. The exam will pivot again, this time to a computer-delivered integrated test that will holistically assess the foundational concepts and principles and the foundational skills identified through the three-year study conducted by the NCBE Testing Task Force.2 The portability that is the touchstone of the UBE will be maintained as a central feature of this new test.

That group of men who met in Atlantic City in 1931 (and I’m sure they were all men) might not have imagined the end result of the path they were starting down, but their bold initiative in coming together to share questions and matters of common concern began an evolution in law licensure testing that continues today.

Happy Anniversary, NCBE!

Promoting Excellence in Bar Examining: NCBE’s Psychometric Expertise Over the Years

By Frederick Y. Yu

It was my pleasure and privilege to serve on the NCBE Board of Trustees from 2000 to 2010 and as chair in 2008–2009. Before that, I served two terms, a total of 10 years, on the Colorado Board of Law Examiners, during which I wrote and graded essay questions for the Colorado Bar Exam. In those days in Colorado, similar to other jurisdictions, we used the Multistate Bar Examination (MBE), but the drafting and grading of essay questions for the semiannual bar exam was entrusted to licensed lawyers, who were appointed for these tasks by the Colorado Supreme Court.

I was honored to be asked to serve on the Board of Law Examiners, but I had a lot to learn. Drafting questions for each administration of the exam was a bit like being a hobbyist brewer: each batch of beer started from scratch, and while we wanted a consistently good product, the results could vary widely. Even the most dedicated bar examiner (we were all volunteers with full-time jobs) could devote only a few days a year to committee meetings, question drafting, and grading.

As a fledgling bar examiner, I found it eye-opening to discover that there was a science known as psychometrics, dedicated, among other things, to the measurement and assessment of knowledge, skills, and abilities, which is precisely what bar examinations are supposed to do. Further, we in Colorado were fortunate to have a psychometrician available for consultation. It was clear that a good psychometrician could offer a lot to those of us charged with developing reliable methods of assessing the minimum competence of those seeking a license to practice law. It was also clear that the tradition of drafting and grading essay questions twice a year left something to be desired in the quest for valid and reliable means of assessing the knowledge of bar applicants.

As 2021 brings NCBE to the 90th anniversary since its founding, and I think back on my tenure with the Conference, I believe one of the significant steps that the Conference took in that era was deepening its bench of psychometric capabilities. In 2001, Susan M. Case, PhD, joined the Conference as its Director of Testing, and Michael T. Kane, PhD, became its Director of Research. Both came from distinguished backgrounds. Immediately before joining NCBE, Susan had been with the National Board of Medical Examiners, with responsibilities for research and for medical licensure and specialty board examination programs. Mike, a frequent speaker on psychometric topics who had consulted regularly with NCBE on testing issues prior to joining the organization, had been a faculty member at the University of Wisconsin–Madison, where he taught courses in measurement theory and practice and conducted research in educational measurement. Not only did both have the academic chops to apply psychometric principles to bar examining, but they also brought an immediate gravitas and credibility to the Conference and the seriousness of its purpose in promoting excellence in bar examining and admissions.

Over the following decade and beyond, Susan and Mike worked tirelessly: they wrote articles, conducted research, lectured at conferences and symposia, and spread the word on the importance of recognizing and understanding professional quality and standards in the development of test materials, test administration, and grading and scoring in high-stakes professional testing—which, of course, describes the bar exam. Even if the audiences of lawyers and non-PhDs never fully grasped the difference between a raw score and a scaled score, they certainly could not and did not miss the importance and value of applying rigorous professional psychometric standards to the task of bar examining.

The addition of this strength allowed the Conference to offer psychometric expertise to the jurisdictions, and the jurisdictions began to recognize and accept the benefits of this resource. Since 2001, the Conference has added even more talent and strength in this area: Mark Albanese, PhD (who recently retired from NCBE in August after 12 years of service); Joanne Kane, PhD; and Doug Ripkey come to mind.

One inevitable result of educating the bar examining community about sound psychometric principles was that jurisdictions began to recognize and identify areas for improvement in how they conducted bar examinations. The law, as both a profession and a subject, is inherently retrospective and incremental. Changing time-­honored, traditional methods of exam question development, administration, and grading was certainly not easy for many jurisdictions. Changes did not occur at warp speed. But Mike, Susan, and the Conference staff stayed on task and continued to spread the word about psychometrics. A search of the Bar Examiner website’s article archive for articles by Susan and Mike gives a taste of their efforts to make core psychometric concepts accessible to bar examiners.

I believe that the addition of psychometric expertise to the ­Conference (thanks to the vision of Erica Moeser) was key to the successful development by the Conference and broad acceptance by the jurisdictions of the Multi­state Essay Examination (MEE), the Multistate Performance Test (MPT), and the Uniform Bar Examination (UBE). Bar examiners could not help but appreciate the rigor with which examination materials were developed, edited, pretested, and evaluated; the close attention to administration and test security; the attentive support to the state-by-state grading process; and the resulting reliability, validity, and consistency of the test results. These were critical elements in the history and evolution of the Conference and its role in educating and supporting bar examiners in their endeavors.

NCBE at 90: A Long-Standing Tradition of Providing Leadership to the Jurisdictions

By Hon. Rebecca White Berch

I appreciate the opportunity to help celebrate the milestone of NCBE’s 90th anniversary. What a history of helping the profession NCBE has had.

NCBE has professionalized and stabilized the bar exam and brought such innovations as the Multistate Bar Examination (MBE) and the Uniform Bar Examination (UBE). It has been at the forefront of best practices in admissions, character and fitness investigations, and the use of rigorous statistical analysis to ensure that the bar exam tests the right things, tests what it purports to test, and performs as it is expected to perform. NCBE has led the way in these important areas and many others.

My Introduction to and History with NCBE

I became interested in bar examining in the early 1990s. After leaving law teaching, I was appointed to Arizona’s Bar Examinations Committee. We committee members thought we were sophisticated, but we solicited essay questions from out-of-state law professors and gave them minimal review, and our grading lacked the rigor necessary to ensure fairness to applicants. I first learned about NCBE during those years and was shocked to learn how much I didn’t know about best practices in bar examining. NCBE serves a critical function in educating bar examiners, the jurisdictions, and the justices and judges who oversee bar admissions.

Later in the 1990s, while serving as solicitor general for Arizona, I became aware of a claim that the system of state-by-state bar admissions violates the General Agreement on Trade in Services (GATS) by creating a barrier to entry to the practice of law. The governor inquired whether Arizona was in violation of the Agreement. While we ascertained that states were not individually subject to GATS, that experience stirred in me a fear that, if states could not come to some arrangements to make admissions more transferable, Congress might step in to regulate admission to state bars. This fueled my interest in creating an agreement among states regarding admissions. I quickly realized, though, that there was little that I, as an individual, could do to effect change. But NCBE stepped up.

Around that time, NCBE president Erica Moeser was making preliminary inquiries on the subject of making admissions more transferable among jurisdictions. Years later and after much initial legwork by NCBE, Diane Bosse, then-chair of NCBE’s Board of Trustees, set up a committee to consider and develop the concept of a uniform bar examination. The concept was finally adopted in 2009, and the rest is history. But it came to fruition only because of NCBE’s leadership.

I served as chair of NCBE’s Board of Trustees from 2017 to 2018, during the transition from Erica Moeser’s 23-year presidency to the presidency of the creative and energetic Judy Gundersen. Erica Moeser provided, and Judy Gundersen continues to provide, outstanding leadership. NCBE is in good hands; it has strong management, wonderful staff, and a talented and knowledgeable Board of Trustees.

NCBE’s Ongoing Contributions

The profession is coming off a tumultuous year and a half, with COVID restrictions causing uncertainty in many jurisdictions about whether the bar exam could be safely administered, or whether certain admission requirements would simply be waived altogether. Amidst the chaos, NCBE helped calm the waters and inject good sense and logic into the sometimes heated discussions, assisting jurisdictions in reasoning their way to solutions. I’m proud of the role NCBE was able to play in helping the jurisdictions and applicants.

NCBE strives to ensure that its tests are relevant and fair. It has invested considerable resources in assembling an outstanding psychometric research team and in conducting the research and analysis necessary to ensure the validity, reliability, and fairness of the exam. NCBE has also financed diversity initiatives, job content validity studies, and comprehensive empirical studies, many of the latter to further the work of its Testing Task Force. All of these are designed to ensure that the bar exam remains relevant and fair and an appropriate tool for bar admissions.

My association with NCBE has led me to a warm, engaging community that truly cares about creating and upholding appropriate standards for entry to the profession of law. NCBE’s work benefits not only bar examiners, but also the jurisdictions that administer the exam and the Courts that oversee admissions. Most importantly, NCBE’s work benefits the applicants who take the exam and, finally and perhaps most importantly, the public.

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