Should There Be a National Licensing Exam for All Lawyers?

As New York considers whether to join 14 other states in adopting the Uniform Bar Exam (UBE) those in favor of one national licensing exam are giddy with the thought that if New York pulls the trigger then other states are more likely to follow.  There is a tremendous amount of rhetoric about the UBE – what it does and does not accomplish.  There are multiple layers of issues to sort through. What follows are some thoughts to get the comments going on this forum. 

Some reasons to support a national exam:

*Students can take one bar exam in any state and then, depending on their score, be eligible to apply for admission in other UBE states

*It will be easier for law firms to recruit new attorneys who are immediately eligible to practice in multiple jurisdictions

Some reasons to be cautious about a national exam:

*What is on the exam will dictate what is taught in many (not necessarily all) law schools

*Accountability may be an issue, especially given what has been criticized as a less than acceptable NCBE answer to the July 2014 MBE results

*States lose control over the content of what will be tested, relinquishing authority to a national body

*Some states, such as NY, have indicated that the UBE is not enough and additional requirements for admission do or will exist.  The NCBE lists the additional requirements that exist in current UBE states (see chart 10) – is this uniform?

*The UBE states do not allow admission by score transfer forever – there are time limits. So, for example, a student takes and passes the test in Montana today, and they have between 18 months and 5 years, depending on the state, to apply to transfer.  See chart 10

Some questions to be answered:

*Will the test result in any disparate impacts?  This can be studied by pre-testing questions and collecting/analyzing data. 

*Will it cost more for applicants to take the UBE than what it currently costs (see chart 7) in their given state?

*If more states join the UBE, will or should the leadership composition of the NCBE change?

Possible Next Step:

*If the Council of Chief Judges , the National Conference of Bar Presidents  and the ABA believe that a national licensing exam is in the best interests of the profession, then a national study commission  should be created that includes representative of these groups and the AALS, minority bars, law students and others who can organize into committees and conduct the requisite studies and data collection, as well as negotiate a national exam that is acceptable to most (all may be pushing it)

Comments

[Enrique Guerra-Pujol]

I look forward to the day when the existing guild system is dismantled. A national bar exam is long overdue.

[Just saying...]

I cannot imagine that some state will not oppose this. I had to take both the New York and New Jersey bar exams because New Jersey (at least years ago) would not allow NY lawyers to waive in. This was clearly an effort to "protect" NJ lawyers from the many NY lawyers that would want to be admitted in NJ, too.

It seems to me that a UBE will allow lawyers from bigger states (bigger in terms of the number of lawyers admitted in it) to overwhelm states with fewer admitted attorneys.

[Derek Tokaz]

"What is on the exam will dictate what is taught in many (not necessarily all) law schools"

Is the UBE likely to have much more impact on law school curricula than the MBE? Since most schools place their grads locally already, how would it have a bigger impact than the existing state bar exam?

"*States lose control over the content of what will be tested, relinquishing authority to a national body

"*Some states, such as NY, have indicated that the UBE is not enough and additional requirements for admission do or will exist. The NCBE lists the additional requirements that exist in current UBE states (see chart 10) – is this uniform?"

Seems the latter is a solution to the former. If a state feels that its laws are different enough that there needs to be additional testing, then they should just have a supplemental test. Allow people to take a shorter test that covers only state law. A 6 hour exam that can be completed in 1 day is a whole lot better than having to take another 3 day long exam that covers material you already passed on the exact same test a few years earlier.

So that's not exactly "universal." Who cares? The goal isn't to have something that we can call universal under the most strict of definitions. The goal is to have something that works for states and lawyers.

[TS]

While we are at it, perhaps we can get the federal courts to start abolishing protectionism in the local rules. Not all federal courts do it, but a large number do.

Local bars lobby for funding for their local federal court buildings, etc. In turn, the federal courts promulgate local rules that exclude out-of-state counsel unless associating with in-state counsel.

[Kristen Holmquist]

It would be a pretty unusual bar exam if it didn't show disparate impacts.

[Derek Tokaz]

The disparate impact argument SALT seems to be making is that something about the memorization the bar exam requires is unfair to minority students. I'll assume that the argument isn't that there are genetic differences in the ability to memorize things, and instead that it's a question of test prep resources, coupled with minority students having less money to spend.

In that case, the proposed solution (testing a "wider range of lawyering skills") will not solve the problem. For instance, if the ability to interview a witness were added, test prep companies would begin offering interview prep. It's easy to imagine interview prep becoming far more expensive than the current pre-recorded BarBri lectures. This would worsen the problem, not make it better.

In fact, I'm finding it hard to think of any sort of test where extensive preparation would not give someone a significant advantage. Any such test will necessarily have tutors and other services that can be purchased, and thus a disparate impact.

If you're worried about disparate impact, it seems like the solution isn't to change the exam, but to change the resources available to the poorest students. For instance, an open-source study guide could be very valuable. Such a thing is more likely to be created with a universal bar, than on a state-by-state basis.

Finally, when it comes to resource differences, BarBri (and the like) are just a small part of the picture. Living expenses can be much more important. The bar exam requires a lot of prep time, and if a student has to work full time to support himself after graduation, it will be very had to prepare -- BarBri or no.

[twbb]

"Accountability may be an issue, especially given what has been criticized as a less than acceptable NCBE answer to the July 2014 MBE results"

The responses to NCBE answer are a trifle strange; the NCBE presented a lot of information about how the test was graded and pretty conclusively showed that the problem was with the testees, not the test, and as best I can determine the response has been to just loudly . The criticisms run a bit hollow (particularly Dean Allard's truly bizarre letter).

[John Steele]

Look at how the "Excess of Democracy" site evaluated the issue. AFAIK, the issue was decisively decided in favor of NCBE. If Dean Salkin (whose posts here have been terrific) has contrary insights, please share them. If not, accept that NCBE had the last say and don't just allude to assertions that have been refuted.

[twbb]

(sentence was cut off, should read "loudly complain about the NCBE's response "disparaged" students."