Bar Exams

Ask The Professor: Will New York Change The Face Of The Bar Exam? Redux

If New York adopts the Uniform Bar Exam (UBE), it could result in dramatic changes to the bar exam on a national level.

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If New York adopts the Uniform Bar Exam (UBE), it could result in dramatic changes to the bar exam on a national level.

Public hearings are scheduled for January 20th , February 3rd, and February 26th regarding New York’s potential adoption of the UBE.

Historically, New York has influenced the bar exam on a national scale. When the Multistate Bar Exam (MBE) was first introduced in 1972, it was only administered by 11 jurisdictions until New York adopted it. According to John Germany, former chair of the National Conference of Bar Examiners (NCBE) and the NCBE Multistate Bar Examination Committee, New York was reluctant to adopt the MBE. However, once New York agreed to administer the MBE, more jurisdictions followed suit. Today, the MBE is administered by all but two U.S. jurisdictions (Louisiana and Puerto Rico).

New York’s adoption of the MBE was the tipping point which led to widespread national adoption of the exam. Chief Judge Jonathan Lippman, citing the attractiveness of portable exam results, suspects that the case will be the same for the UBE, should New York choose to adopt the exam.

If New York does become the 15th state to require the UBE for admission to the bar, the question may not be whether other jurisdictions will follow, but how quickly?

While New York’s implementation of the UBE could likely cause a large increase in the number of jurisdictions administering the UBE, the ripple effects may not end there. Such a dramatic change to the bar exam on a national level could result in changes in law school demographics, changes geographically to the legal job markets across the country, and place a strain on the court systems of popular jurisdictions.

Expensive law schools in metropolitan areas could see dramatic decreases in student enrollment; their very existence may be in jeopardy. Law school tuition in major cities is often higher than in less populated areas of the country. A location in a high-profile metropolitan area has been an asset, allowing some low-ranking schools with low bar passage rates to charge a premium for tuition. The argument is that it is in a student’s best interest to attend school in the state in which they plan to practice and take the bar exam dissipates when the exam is national and does not have a local component.

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The advantage of attending a law school in New York State or any state in the country would certainly diminish with the adoption of the UBE. The reduction in the testing of New York-specific law begs the question: why would students choose to attend high-priced “local” law schools when there is no substantive advantage over a much lower cost in another part of the country?

If New York becomes a UBE jurisdiction, a student who wishes to one day practice in New York could attend a more affordable law school and take the bar exam in another UBE jurisdiction. The only added requirement, not part of the bar exam but an admission requirement, would be to pass the 50-question New York-specific exam.

These policy issues are speculative but real. However, there is another question that begs an answer: how does this improve the New York Bar or better serve the residents of the state?

The New York Bar Exam has been one of the most “local” exams in the country even with the adoption of the MBE and MPT. The New York Multiple Choice portion of the current exam is comprised of 50 challenging questions that are all based on local law. The five essays are also New York-specific and, as such, have a focus that is very different from the UBE and the rest of the country. Why would New York give up its identity?

At the House of Delegates meeting of the New York State Bar Association (NYSBA) on November 1, 2014, many legal professionals expressed concern over the possibility that the adoption of the UBE could result in a loss of New York’s unique legal identity. Justin L. Vigdor, who formerly served as NYSBA President and has been one of five New York Uniform Law Commissioners for the last 26 years, voiced concern over the testing of uniform laws on the bar exam when, historically, the New York State Legislature has demonstrated an aversion to the adoption of uniform laws. Michael Galligan, member-at-large of NYSBA’s Executive Committee, pointed out that New York law is distinctive both internationally and nationally, and questioned whether a bar exam with a primary emphasis on uniform laws would result in admitted attorneys sufficiently versed in the nuances of New York law.

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The change in lawyer mobility is another implication of adopting the UBE. While it is unclear exactly how much New York bar admissions would rise, it is probable that New York would see a sizable increase upon adoption of the UBE. This raises yet another concern: what kind of strain would such an influx put on the New York court system?
There are certainly many factors for the Court of Appeals to consider in making its decision on whether or not to adopt the UBE. Though the benefits and detriments are disputed, one thing is clear: the implications of the adoption would be widespread. Such a dramatic change to the New York Bar Exam, and the eventual widespread adoption of the UBE by jurisdictions across the country, could result in changes in law school demographics, attorney admissions, the legal job market, and the infrastructure of the court system.

We should all look closely at what New York does. It will change things if it adopts the UBE and these changes may have many unintended consequences.

Professor Joseph Marino has been a fixture in the world of legal education for the past 40 years. Whether you’re just starting law school, about to take the bar, or an attorney in need of CLE, he and Marino Legal Academy are here to help. He is the Director of Marino Bar Review and the Marino Institute for Continuing Legal Education. He writes a bimonthly column, Ask the Professor. Visit the Marino CLE page on ATL, connect with him on LinkedIn and Facebook, or email him via info@marinolegal.com.

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