The NCBE is currently focused upon encouraging states to adopt its uniform bar examination.202 It has justified this approach in terms of its ability to validate test questions and to correlate performance across the range of tests it provides.203 At the same time, it is difficult to ignore the financial considerations at work that may affect its neutral judgment and priorities. The uniform bar exam is the NCBE’s current headline product. The product’s financial dimensions matter to the NCBE. It therefore is preoccupied with encouraging states to adopt this
___________________________ 198. See Shultz & Zedeck, supra note 132, at 620. 199. See Shultz & Zedeck, supra note 132, at 641-654. 200. See sources referenced at note 114, supra. 201. See Fisher v. Univ. of Tex, 133 S. Ct. 2411 (2013).
202. As of August 2013, thirteen jurisdictions have adopted the uniform bar exam. See The Uniform
Bar Examination, National Conference of Bar Examiners, http://www.ncbex.org/multistate-tests/ube/
(last visited Aug. 7, 2013).
203. Kelley Early, The UBE: Policies Behind the Portability, 80 BAR EXAM’R No. 3 (Sept. 2011) (discussing the Uniform Bar Examination).
“product,” whatever other priorities might arguably be worth its attention as an institutional matter.
I have previously argued (in major meetings of the NCBE and otherwise) that the NCBE should reconsider its priorities and instead consider “bifurcating” the bar exam as it has been understood historically (focusing on national multiple choice and essay exams). My argument is as follows:
The NCBE should establish a two-step bar examination process and make it available to state bar examiners. An initial step-one exam would be made availa- ble at the end of the first year of law study (with the possibility of repeating this step after the second or third year) and a step-two exam made available at the end of the third year.
The step-one exam would make available national multiple choice and na- tional essay exams on subjects typically taught during the first year (property, civil procedure, torts, criminal law, contracts, and constitutional law).204 Students could (but would not be required to) take the step one exam and receive scores after their first year summers.
These scores would be portable across jurisdictions (subject to minimum score requirements). Law students would inform their schools about their perfor- mance and law schools would in turn help students develop fundamental analyti- cal skills well in advance of graduation. Equally important, law students could accrue such scores and be able to decide whether to “step out” and work before returning to law school and completing their degrees. Crucial benefits of this approach would include allowing law students to stop out (knowing their level of accomplishment) after a first year of study without taking on a full three years of debt. In addition, by stopping out and working, law students could gain a clearer understanding of their interests and priorities, could earn enough to pay off initial debt before returning to law school, and could provide the legal profession with valuable employees whose expertise would be worthwhile (even if a full JD had not yet been awarded).
The step-two bar examination would differ from the traditional, existing bar exam. Since first-year subjects would be tested (on an optional basis) at the end of the first year of law school, the test given at the end of the third year of law school could differ significantly from the current bar examination. Time and test- ing resources would no longer need to be devoted to first year subjects (such as civil procedure, contracts, constitutional law, criminal law, torts, and property law, none of which would need to be re-tested at the end of third year). Instead the focus of the step-two bar examination would be on advanced subjects beyond the first year. Applicants for part two of the bar examination might be tested on a core set of advanced subjects determined by state bar examiners to be appropriate for all test takers (such as business associations, evidence, and perhaps criminal procedure, trusts/estates, and family law). State bar examiners could also then devote substantial time to examine applicants in depth in areas of declared student expertise in which applicants might be tested using practice-related protocols (for example, testing using practice-oriented files and tasks in areas of proposed prac- tice similar to the multi-state performance examination, but allowing students to
___________________________ 204. See Kloppenberg, supra note 135, at 47-61.
opt into examination in particular areas such as criminal law, civil litigation, gen- eral practice, family law, and so forth).
This approach would help keep law schools honest. It would help assure that first-year law students had attained a core level of competence related to analytical problem-solving in common law courses, and assure that law schools are held accountable for their abilities to provide students with related analytical skills. It would also help provide a benchmark that would in turn encourage law schools to engage in more innovative instruction in the second and third year, with an em- phasis on application of legal principles and advanced subject matter instruction (rather than continuing to stress the basics of “thinking like a lawyer” that students should have attained after the first year).