April 01, 2017

The Section Lives, and a Few Words on Bar Admissions and Examiners

Billings, Montana
Council Chair

I write to report on developments relating to the existence of our Section of Legal Education and Admissions to the Bar. Elements of a January, 2017 proposal to the ABA Board of Governors for the creation of a new ABA Commission on the Future of Legal Education included changing the name of the Section of Legal Education and Admissions to the Bar to the “Section on Accreditation” and transferring the “non-accreditation” functions (workshops, publications, and the like) of our Section to the new commission. The “Section on Accreditation” would be focused solely on accreditation, although the current non-accreditation activities of our Section have long informed the accreditation project It was proposed that the new commission be made permanent, that its members be appointed by the ABA President to three-year staggered terms, and that the commission be funded, at least in part, by the faculty group membership dues. The faculty members would remain in the Section of Accreditation and would also be “friends” of the commission. The faculty group membership program, which provides nearly 10,000 of our approximately 14,000 members, is an important funding source for our Section.

At the February 2017 ABA Board of Governors meeting, the Membership Services Committee of the Board of Governors recommended creation of a Commission on the Future of Legal Education, but not the particulars of the proposal as summarized above. The Board of Governors approved the next day.  The new commission will officially become effective at the end of the August 2017 ABA Annual meeting. 

Changing the name of a section requires a two-thirds vote of the ABA House of Delegates. Under the ABA Bylaws, commissions are not permanent, but rather subject to annual review by the House of Delegates, and commissioners serve only one-year terms.  In contrast to ABA commissions and other committees, the sections are the enduring elements of the ABA and are named in the ABA Constitution. They perform the tasks assigned to them under their section bylaws. Sections also provide services to section members under various section programs. 

To accomplish the proposed changes in our Section described above, amendments to the ABA Bylaws would have been required. However, the deadline for the submissions of proposals for changes to the ABA Bylaws in advance of the August 2017 annual meeting was March 10, 2017. I am informed that no proposals for amendments relating to our Section were submitted.  Therefore, the first section of the ABA, the Section of Legal Education and Admissions to the Bar, lives on.

Speaking of bar admissions, and since “Admissions to the Bar” is in our Section’s name, many of the readers of Syllabus are already aware that the House of Delegates adopted a resolution urging the bar admitting jurisdictions to adopt expeditiously the Uniform Bar Examination (UBE). The resolution enjoyed the enthusiastic support of the ABA’s Young Lawyers Division and Law Student Division, and passed the House overwhelmingly. Support of the UBE is now official ABA policy.

The UBE is composed of the Multistate Bar Examination (MBE), the Multistate Essay Examination (MEE), and the Multistate PerformanceTest (MBT). Jurisdictions that adopt the UBE accept UBE scores earned in other UBE jurisdictions. The UBE grew out of the recognition that a great many jurisdictions were already employing the MBE, MPT, and MEE. If graduates were taking essentially the same test, the question was asked, why should they be required to take the test again in order to be admitted in another jurisdiction, and await the results, sometimes for several months? 

The first UBE jurisdiction was Missouri, followed by North Dakota, and then a number of other states, primarily in the West. However, New York joined, and other states in the Northeast soon followed.  As of this writing, 28 jurisdictions have officially adopted the UBE. The UBE is under consideration in other jurisdictions. Elsewhere in this edition of Syllabus our managing drector, Barry Currier, addresses why national standards for legal education are important.  While under the UBE, jurisdictions continue to establish their own minimum passing scores, their own character and fitness standards, etc., a healthy trend toward a uniform bar examination is clearly underway.

It bears noting that an urban legend seems to persist that recent disappointing bar passage results in some jurisdictions are somehow tied to jurisdictions adopting the UBE.  That is both a legend, and a myth.  New York, for example, did not experience a decline.  The question of why bar examination performances have declined is complex.   Many factors are in play.  Some jurisdictions raised their minimum passing scores when they adopted the UBE.  Minimum passing scores do indeed vary across the country, from a high of 145 on a 200-point scale to a low of 129.  The difference is substantial. Where cohorts fall on the bell curve of score distribution varies from jurisdiction to jurisdiction. Cohorts of examination takers vary from jurisdiction to jurisdiction.  Some cohorts are more gifted with more native talent and went to schools that did a better job of preparing them than in others. It is also true that some schools have gone deeper into their applicant pools and taken greater risks than they have in the past in order to fill out their classes.  It is not terribly surprising that we see some correlation in bar examination performances three years later.

One essential constant has been the Multistate Bar Examination, which since its birth in 1972 has become the anchor for bar examinations across the country. Of the 50 states, only Louisiana with its Napoleonic Code tradition does not employ the MBE in its test battery. The MBE is also given in the District of Columbia and several U.S. territories.

Psychometricians, those studying the science of the measurement of human performance, emphasize the importance of “validity” and “reliability” in high-stakes examinations. When one asks whether an examination is valid, one is asking whether it tests what it ought to test. When one asks about the reliability, one is asking about the repeatability of the score earned. It should not matter what edition of a test one takes.The reliability coefficient of the MBE regularly exceeds an impressive .90. Psychometricians consider .80 to be the  “gold standard” for high-stakes testing. One could have a reliable test that is not valid, but one could not have a valid test if it is not reliable. Eliminate the MBE from the bar examination and one would interject a serious element of arbitrariness to the pass/fail decision because a limited number of essay scores, by their nature, are unreliable.

Drafting committees, each of which has a majority of legal academics and a minority of practitioners and judges writing the test items, creates the NCBE tests.T he urban legend that bar examiners are flinty-eyed practitioners bent on keeping newly graduated lawyers out of the profession is also a myth.The committees strive to test what newly licenses lawyers ought to know. No test is perfect, but the UBE is a vast improvement on bar examinations from the "good old days." Perhaps with the growth of the use of artificial intelligence, avenues for even more sophisticated bar examining and admissions protocols may emerge.

I mentioned earlier recent declines in bar examination perforance. I am pleased to say that in my work on the Council, I have seen evidence that many schools are renewing their commitments to achieving the goal of preparing their students to be admitted to the bar upon graduation. This is all to the good, and in the tradition of the finest legal education system in the world.