Law Schools

The UBE: The Inevitable And Its Perils

Beware a monopolist bearing gifts.

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I’ve been reading lately.  It’s a great way to escape.

Unless you read about the trend towards the Uniform Bar Exam (UBE).  Then you’re gripped in a Game of Thrones type of brutal world, except without any cool dragons.

It is with that gusto that I read Professor Marsha Griggs’s article, “Building a Better Bar Exam.”  How do we do that, you ask?  My answer to this question is simple:  Don’t have one.  Professor Griggs’s answer is a bit more complex.

The Uniform Bar Exam is actually three exams.  It’s the Multistate Essay Exam, the Multistate Performance Test, and the Multistate Bar Exam.  These standardized tests, Professor Griggs tells us, comes from the National Conference of Bar Examiners (NCBE).  That’s a group that is not related to any state entity.  It is unregulated, does not answer to anyone, and it controls the destiny of those seeking to be future attorneys.

According to Professor Griggs, 36 jurisdictions have adopted the UBE thus far, with more to come.  And, as she points out, this isn’t your father’s bar exam.  The UBE is fundamentally different than the one many of us took millennia ago:  “The uniform exam has almost no resemblance to the bar exams administered to a majority of attorneys who today comprise our judiciary, practicing bar, and legal academy.”   That means that those of us teaching like we’ve always been teaching may not be helping our students pass today’s UBE.

This, Professor Griggs states, creates some tension, and some blame.   The tension starts with the potential loss of academic freedom for faculty members who don’t necessarily feel that teaching to the exam will create great lawyers.  Should professors teach what we want and leave the UBE to the bar exam prep courses?  If the bar prep courses are truly effective gap-fillers, why are bar pass rates down?  Even if we do teach to the UBE, will students remember?  There is much hand wringing here.

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And much blame.  In the face of declining bar passage rates, everyone played what Professor Griggs describes as the “Blame Game.”  The NCBE blamed diminished student competency.  Declining jobs pushed applicant pools lower, leading to a blame of law school admissions practices.  And law school deans, insistent on lower cut scores, blamed the bar examiners.  Meanwhile, students who invested thousands (and hundreds of thousands) to become lawyers find that the final obstacle is mighty.

The disproportionate impact of the scoring of the multiple-choice questions is, quite frankly, an eye-opener.  Are we helping or hurting our students if the essay exam remains the weapon of choice for most law professors? Still, there is much in the discussion on exam scaling that reminds me of how U.S. News ranks law schools.

Professor Griggs warns of consequences of UBE adoption.  Bar takers actually “forum shop” to decide in which jurisdiction they have the best chance of passing. Perhaps successful takers will think they’ll have a score that is portable across jurisdictions.  Maybe, but not for sure given time limitations and reciprocity restrictions.  Regardless, uniformity does not equate to portability.

And, of course, there’s the question of how much the NCBE, an unregulated standard-setting body, should be in essence dictating what law schools teach or what states test.  There is tremendous pressure on deans to fix lagging passage rates, which in turn puts pressure on faculty to start teaching to the test.  The ultimate question:  Will that make for better lawyers?   Law firms often complain that first-year associates are ill-prepared for the challenges ahead.

There is much more in Professor Griggs’s article, including some potential solutions, and a warning: “Our greatest mistake would be to give too broad of deference to a

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non-state authority or a commercial bar prep provider in the regulation of entry into the practice of law.”  Or, if I can quote a very recent blockbuster: “Don’t give me hope.”  Particularly where a monopoly is concerned, I tend not to have any.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here.  He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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