The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, I wrote about the apparent efforts to make the NextGen Bar Exam far simpler that the current exam. I received an email from a person who worked as a state board of law examiners. With permission, I reproduce the email, stripping any reference to the person's state.
I was an Assistant to the *** Board of Law Examiners when the *** Supreme Court decided to adopt the UBE [Uniform Bar Exam]. The sales pitch for the UBE from the NCBE, as presented to the group of assistant bar examiners I was among, was threefold. First, it won't be any worse that the current bar exam. Second, it will be better for the applicants because they will have more flexibility in deciding to which state they should move. Third, everybody else is doing it. None of those explanations supports such a dramatic change in public policy as the adoption of the UBE and the abandonment of a state-specific essay test. For my part, I asked two questions: If the UBE is not an affirmative improvement over the status quo, why should we change? Why should the *** Supreme Court elevate the applicants' interests in residential flexibility over ensuring that ***'s new lawyers have demonstrated some level of competence in *** law? I did not receive satisfactory answers to either question. The Board and the other assistants seemed inclined to blindly defer to the so-called expertise of the NCBE and generally unwilling to consider the consequences of the policy change.
In the years leading up to that travesty, we, the assistants, received annual training from NCBE [National Conference of Bar Examiners] on how to write an essay question. The sum total of that training was that we should avoid anything that would make the essay difficult. They trained us to avoid including multiple issues in a single question and to avoid complex factual scenarios. The Board and the Assistants applied strict scrutiny to each essay question, eliminating anything that would actually test the applicants' ability to see fine-line distinctions and discern issue-critical facts. As a result, the essay questions that I wrote for the bar exam bore only passing resemblance to the essay questions that I answered *** years earlier. When the question of adopting the UBE came up, I opposed it because it represented the elimination of the requirement that newly licensed lawyers in *** begin with a base level of understanding of *** law. The Board and the NCBE representative explained that memorization of basic legal principles was no longer necessary because, in practice, lawyers look things up in a book or on Westlaw anyway. To that, I asked if the test shouldn't be an open book test or if we shouldn't just revert to diploma privileges. What is the purpose of a test, if it does not require its takers to demonstrate mastery of the subject matter? The only response was that only minimal competence is required. But the couldn't define what that was, except to say minimal competence is minimal competence.
In my view, the UBE, and the *** Supreme Court through its adoption, dropped the standard of "minimal competence" to an alarming level. I could not, in good conscience, continue to serve and resigned. The NextGen Bar Exam represents the complete abandonment of competence as a standard. I sincerely hope that the *** Supreme Court does not adopt it. Unfortunately, they will probably blindly defer to the "experts" at the NCBE.
Even since *** adopted the UBE, I have been hoping that it would not prove to be the disaster for professional competence that I feared it would. And while the jury is still out on that point, the NCBE now wants to do away with any testing of the applicants' abilities to apply the facts to the law. Any state that adopts the NextGen bar exam will have abandoned its professional obligation to ensure that new lawyers are minimally competent.
More state supreme courts should take a pause before stumbling down this road.