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Will the uniform bar exam ever come to Michigan?

Guest article by Otto Stockmeyer

On October 29, the Michigan Board of Law Examiners posted the names of 451 law graduates who passed the July 2018 Michigan Bar Examination.  Congratulations one and all!

Wouldn’t it have been nice for these bar passers if Michigan administered the Uniform Bar Examination?  The UBE allows new lawyers who pass the exam to transfer their score when applying for admission to another jurisdiction. Thirty-five states and territories have adopted the UBE, including big-ticket states like New York, Illinois, Ohio (beginning in 2020), and – just last month – Texas (beginning in 2021).

Portability

Score portability maximizes job possibilities for graduating students.  Instead of being limited to Michigan, our bar-passers would have 35 other jurisdictions where they can look for employment without retaking the bar exam.  And portability allows new lawyers to establish cross-jurisdictional practices more easily.  Since 2011, when the UBE was first administered, roughly 12,000 UBE test-takers have transferred their scores to other jurisdictions.

So far no discernable trend has emerged regarding the flow of transferees, according to ABAJournal.com.  Arizona, Colorado, and New York have had more scores transferred out than into their states.  Connecticut, Kansas, and Washington, D.C. have had more scores transferred into their jurisdictions than out.

Development

Developed by the National Conference of Bar Examiners (NCBE), the UBE has three components already in wide usage: the Multi-state Bar Exam (a day of 200 multiple-choice questions on seven subjects), the Multi-state Essay Exam (six 30-minute essay questions on any of 10 listed subjects), and the Multi-state Performance Exam (two 90-minute writing assignments that test lawyering skills).  

The UBE has other benefits in addition to score portability, including expert drafting and consistent grading.  In the past 10 years, the NCBE has made major improvements to their multiple-choice questions based on psychometric research.  No more “waterfall” questions (where the answer to a question depends on a correct analysis of the preceding question), or compound answers (“A and B but not C”), and no all-of-the-above or none-of-the-above options.  In 2015, Civil Procedure was added as a tested subject.

Drafting and grading

The essay questions are drafted by the NCBE Drafting Committee and then pre-tested, analyzed by outside subject-matter experts, and reviewed by the boards of bar examiners in user jurisdictions.  The NCBE provides a grading guide for every question and sponsors a grading workshop for bar examiners.

The essay and performance parts of the UBE are independently graded and scored by each state.  States have the choice of grading answers according to general U.S. common law or the jurisdiction’s own law.  States that wish to add a state-specific component are free to do so.  Currently 23 jurisdictions require a separate test or course on local law before or after the exam.  Every state sets its own passing score (passing and transferring scores range from 260 to 280 around the country).  States also can limit the amount of time that a UBE score is valid in their state.

Endorsements

The ABA Law Student Division’s Before the Bar blog has been an enthusiastic supporter of the UBE.  In 2010 both the Conference of Chief Justices and the ABA’s Section of Legal Education and Admissions to the Bar endorsed consideration of the UBE.  The ABA itself endorsed the UBE at its 2016 mid-year meeting. 

Will Michigan adopt the UBE anytime soon?  We were the 40th state to adopt the Multi-state Bar Exam.  We still don’t employ the Multi-state Essay Exam (available since 1988 and used by 36 states) or the Multi-state Performance Test (available since 1997 and used by all but eight states).  We were the 49th state to embrace IOLTA.  And Michigan is one of only four states that still have not enacted Mandatory Continuing Legal Education.  When it comes to progressive reforms, we’ve been the Stick-in-the-Mud State. 

What would it take?

What would it take to get the ball rolling?  In most states that have adopted the UBE, the process started with formation of a task force appointed by the state supreme court. Task forces often spend two years studying the matter; implementation usually takes another two years.  In some states, the task force report goes nowhere.Even if the Michigan Supreme Court were to appoint a task force tomorrow, and the process led to adoption of the UBE, likely no student currently enrolled in law school would enjoy the benefits.  “Reform,” to paraphrase former New Jersey Supreme Court Chief Justice Arthur T. Vanderbilt, “is no sport for the short-winded.”   
 
(The author is a Distinguished Professor Emeritus at Western Michigan University-Cooley Law School.  When he was chair of the State Bar Young Lawyers Section in 1972, the Section adopted a resolution urging that Michigan eliminate the bar exam for graduates of accredited law schools and substitute a period of internship or completion of a practical-skills course.  Since teaching law, he has come to support retention of the bar exam, but believes it could be improved. His views are his own and do not necessarily reflect those of WMU-Cooley Law School.

The scope of Michigan’s bar exam

The Michigan Bar Examination currently consists of the multiple-choice Multi-state Bar Exam (MBE), worth a maximum of 200 points, and fifteen 20-minute essay questions covering some or all of 16 subjects, worth up to 10 points each.

Applicants can transfer a passing MBE score from another jurisdiction under certain conditions.  Thus Michigan already uses the multiple-choice portion of the Uniform Bar Examination and permits limited transferability of scores from other jurisdictions.

Michigan’s homegrown essay questions are drafted, and graded, by members of the Board of Law Examiners or by attorneys or out-of-state law professors selected by the Board.  Each Board member is responsible for three questions.  Some draft some of their own questions.  Others farm out all of them.

Rule 3(A)(2) lists 16 subjects tested on the essay portion, but several cover more than one topic (Criminal law and procedure, for example).  As every law student knows, Criminal Law and Criminal Procedure are separate courses.  The actual number of tested subjects is closer to 24.

Essay questions and draft model answers are distributed to in-state law professors for comment before grading begins.  (Of more than 40 model answers in my subject, Contracts, over a recent 12-year period, only three involved “local law” – our statutory exception to the Preexisting-Duty Rule [July 2002] and our unique Third-Party Beneficiary statute [July 2010 and July 2011].)

Policies posted on the Board’s website include a scoring rubric defining each numerical score (0 through 10) in terms of degree of competence demonstrated.  Also available on the Board’s website are the actual essay questions and answers for the past 10 years.

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