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By Melissa Stanzione
March 23 — This July, New York and the District of Columbia will administer the Uniform Bar Exam for the first time, joining 19 other jurisdictions that either currently administer the test or will within the next year.
“The trend is clearly one of growth that should and will continue,” Michael S. Greco, former president of the American Bar Association, told Bloomberg BNA in an e-mail.
But some say this expansion should be tempered amid concerns about the “differential impact” the UBE could have on minority bar applicants.
In addition, while the scarcity of traditional legal jobs in recent years has spurred the test's increased acceptance, some say this new legal market with fewer apprenticeship opportunities calls for more skills-based testing.
The ABA passed a resolution at its mid-year meeting in February urging bar admission authorities to consider the effect on minority applicants of adopting the UBE.
A report accompanying Resolution 117 said that because the exam is relatively new, there isn't data to understand the UBE's effect on minority applicants.
While we don't know if the UBE will affect minorities, we do know that the Multistate Bar Examination, “which now constitutes 50 percent of the UBE, is a test that seems to have a disparate impact on minorities, particularly African Americans,” Alice Richmond, former National Conference of Bar Examiners board chair told Bloomberg BNA in an e-mail.
The MBE is used by all states except for Louisiana.
“Because the UBE places the most weight on the MBE, it is vitally important for states considering adopting the UBE to consider how the MBE emphasis might negatively impact minority students,” the ABA report said.
“In addition, states considering adopting the UBE should consider how the MBE interacts with the phenomenon known as ‘stereotype threat,' ” the report said.
A stereotype threat is “the pressure that people feel when they fear that their performance could confirm a negative stereotype about their group. This pressure manifests itself in anxiety and distraction that interferes with intellectual functioning,” the report said.
It's “a well-established fact” that members of some minority groups don't do as well as others on the bar exam, but there is “no data that supports that the UBE has a positive or negative impact on any group,” Erica Moeser, NCBE president, told Bloomberg BNA.
The NCBE coordinates the UBE.
Moeser addressed concerns that minorities may not perform as well as other groups: “I have heard and seen that in the press and I can tell you it's a myth,” she said.
We would address “with all speed” any reason to believe the UBE was creating a test situation “worse than the current” one, Moeser said.
One of the few studies on the UBE was undertaken by a New York State advisory committee. The group was formed to study the state bar's proposal to adopt the UBE.
The committee compiled information “to provide insight as to the possible impact” the UBE would have on bar passage rates according to race, ethnicity and gender.
The committee's final report noted that in July 2014, the pass rate for the traditional N.Y. bar exam for white test takers was 87 percent; for Asian/Pacific Islanders, 81 percent; for Latinos, 68 percent; and for African Americans, 65 percent.
It also found that there was “no evidence that the UBE would result in any significant change in outcome differentials.”
“From all indications, virtually all the people who would pass the existing test would pass the UBE. Virtually all the people who would fail the existing test would fail the UBE,” the report said.
“The question then remains whether the bar exam, some other factor, or a combination of factors explains these differences,” the report said.
Richmond urges delaying implementation of the exam.
“For many of us, it is not clear whether a written test” such as the UBE “is really the best way to test for the skills and qualities we want in lawyers, especially since so many new lawyers will now be hanging out their own shingles sooner than before because of the changing demographics in the legal profession,” she said.
Since the 2008 recession, there has been a sharp decline in “traditional entry level jobs” so that many law graduates have a hard time finding legal work, Richmond said.
“The traditional ‘model' of a newer lawyer working with a more experienced lawyer seems harder to access for many law graduates,” she said, so many lawyers starting out accept alternative employment or open their own firm.
Ben Bratman, a professor of legal writing at the University of Pittsburgh School of Law, Pittsburgh, Pa., agrees that the test needs a skills-testing section.
“The proposed way that is all the rage—the UBE—cements in place a fundamentally flawed bar exam that tests memorization and knowledge of law far more than it tests execution of lawyering skills,” Bratman told Bloomberg BNA in an e-mail.
“As to testing skills, many have advocated and I agree that the bar exam, like the exams for entering the medical profession, should have a required clinical component,” he said.
Proponents of the exam cite several of its benefits, including its portability.
According to the NCBE, the exam's purpose is “to test knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law. It results in a portable score that can be used to apply for admission in other UBE jurisdictions.”
The portable score is a “major justification for and benefit of” the UBE, Greco said.
There are approximately 45,000 annual law school graduates, many of whom are “staggeringly burdened” with student loan debt and don't have employment by the time they take the bar, Greco said.
Being able to take scores across state lines “eliminates the duplication of effort, money expenditure and substantial time investment associated with taking the bar exam in multiple jurisdictions,” he said.
Greco said that he doesn't see drawbacks to the test but that it's important for states considering adopting the test to conduct due diligence and educate themselves on the experiences and positive effects the UBE has ushered in for the states that have been using it in recent years.
The notion of a common bar exam has been around for at least 25 years, but the time “became ripe” for the UBE only recently, Moeser said.
“The employment crisis for law grads starting in the late aughts, compounded with a debt crisis,” played a role in increasing interest in the test, she said.
There's been interest not just on the part of law students, but of law schools and the courts, Moeser said.
“The aspect I did not foresee is that the supreme courts have often been the leaders of change. The Chief Justices’ vision has carried the day in more states than I would have imagined,” she said.
New Jersey and Oregon are among the states currently considering adopting the exam.
There remain, however, 30 states that haven't adopted the UBE.
The Virginia Board of Bar Examiners has considered the UBE but decided “it is not in the best interests of the public of Virginia or the Virginia judicial system,” Catherine Crooks Hill, board secretary, told Bloomberg BNA in an e-mail.
“The Board will continue to consider the UBE and other bar admissions exams as needed to fulfill its statutory duties,” Crooks Hill said.
According to the California bar, the UBE isn't under consideration at this time.
Greco surmises that California may be worried that students who pass the UBE in another state could “flood into” California, making it difficult to control character and fitness. Another worry could be that young lawyers will be unfamiliar with the state's laws and legal culture.
In response to the question why more states haven't adopted the UBE, Moeser replied, “change is hard.”
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